Opinion
D039979.
7-29-2003
RICHARD A. CHAVEZ et al., Plaintiffs and Appellants, v. ENRIQUETA MENDOZA et al., Defendants and Respondents.
In this malicious prosecution case, plaintiffs Richard A. Chavez and Ina Chavez (the Chavezes) appeal the judgment entered in favor of defendants Enriqueta Mendoza and Maria Luisa Veizaga (collectively Mendoza) after the trial court determined in a bifurcated trial that the Chavezes "did not prevail in the [underlying] action and are not entitled to a finding of favorable termination, a necessary element of [their case.]" Mendoza also seeks sanctions against the Chavezes for a frivolous appeal. We reverse and deny sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
As we noted in Chavez v. Mendoza (2001) 94 Cal.App.4th 1083 (Chavez I), "In February 1999, . . . Mendoza filed suit against Farmers Insurance Group of Companies (Farmers) and Farmers agents, [Chavez], asserting numerous contract and tort claims. In their answer, the Chavezes admitted they owed Mendoza $ 130,000 on a promissory note, but denied liability on the remaining claims. After Mendoza presented her case at trial on these remaining claims, the court granted the Chavezes motion for nonsuit and granted judgment in the Chavezes favor on all claims except the $ 130,000 admitted liability and interest on that liability.
"The Chavezes then filed a malicious prosecution complaint against Mendoza and her attorney[, Veizaga,] in the underlying action. . . . The Chavezes alleged Mendoza asserted the unsuccessful claims without probable cause and for an improper motive. Mendoza responded by filing an anti-SLAPP [(strategic lawsuit against public participation)] motion [(Code of Civ. Proc., § 425.16)]. . . .
All statutory references are to the Code of Civil Procedure unless otherwise specified.
"The trial court denied [the] motion, concluding Mendoza failed to show the malicious prosecution complaint falls within the provisions of section 425.16." (Chavez I, supra, 94 Cal.App.4th at p. 1086.) Mendoza appealed, claiming the trial court erred in finding the anti-SLAPP statute inapplicable to a malicious prosecution case and in not granting her anti-SLAPP motion. (Id. at pp. 1086-1091; see unpublished portion of Chavez I in D037586 at p. 10 (filed Dec. 24, 2001).)
All references to the unpublished portion of Chavez I will be to D037586.
In the published portion of Chavez I, we concluded the trial court had erred and held "[Chavezes] malicious prosecution cause of action was subject to a special motion to strike under [section 425.16]." (Chavez I, supra, 94 Cal.App.4th at pp. 1086-1087, 1090.) In the unpublished portion of Chavez I, we then found the Chavezes had "met their burden to establish a probability they would prevail on their malicious prosecution claim." (Id. at p. 1086; D037586, at pp. 12-13.) In doing so, we specifically noted we were "not expressing any view on whether there will be any merit to the Chavezes claims at trial." (D037586, at pp. 12-13.) We merely found that the Chavezes had adequately met their anti-SLAPP motion burden as to each of the elements, including favorable termination, to establish a cause of action for malicious prosecution. (Id. at pp. 9-12.) Based on such finding, we affirmed the trial courts order denying Mendozas anti-SLAPP motion. (Chavez I, supra, 94 Cal.App.4th at p. 1086.)
Sometime after the matter was returned to the trial court for further proceedings, the court denied Mendozas motion for summary judgment or, in the alternative, summary adjudication of issues. In addition to finding triable issues of fact regarding the elements of probable cause and malice for a malicious prosecution action, the court found Mendoza had not shown the Chavezes "cannot establish the favorable termination element." With regard to such element, the court stated:
"It appears from [Mendozas] exhibits . . . that the stipulations (which [Mendoza] here argues constitute a settlement) in the underlying action addressed only the sixth, seventh and eighth causes of action of the underlying action. These three causes of action are severable from claims made in the first, third, fourth, and fifth causes of action of the underlying action. The latter four causes of action were, in whole or in part, based upon alleged over-insuring, misappropriated cash payments, and converted jewelry. The trial judge in the underlying action granted a motion for judgment ([] § 631.8) as to the first, third, fourth and fifth causes of action brought by the [Chavezes].) The ruling on the section 631.8 motion was incorporated into the judgment entered on March 31, 2000. . . . This appears to constitute a favorable termination in favor of plaintiffs [Chavez] herein as to the first, third, fourth, and fifth causes of action of the underlying action. (See Paramount General Hospital Co. v. Jay (1989) 213 Cal. App. 3d 360, 363, 372, 261 Cal. Rptr. 723 [(Jay)]. Accord, Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1153 [(Graham)] [Groundless charges coupled maliciously and without probable cause with well-founded causes are no less injurious for the coupling.] Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409 [(Ferreira)], heavily relied upon by [Mendoza], is distinguishable.)"
The joint trial readiness conference report reflects that the parties disputed whether the underlying case brought by Mendoza against the Chavezes favorably terminated in relation to the claims on which the Chavezes were bringing this malicious prosecution action. The Chavezes position in their trial brief was that they received favorable termination on all but one count, which they had conceded in their answer to the underlying action and was not at issue in this malicious prosecution case. Mendozas trial brief position was that the underlying action as a whole, based on the one judgment rule, did not terminate on the merits in the Chavezes favor, but rather "actually" concluded by settlement.
Although the trial court denied the Chavezes in limine motions for a determination of favorable termination on three causes of action and for a determination as a matter of law that there was a lack of probable cause, it permitted supplemental briefing on both issues. In their supplemental briefing, the Chavezes relied upon the unpublished portion of Chavez I as law of the case and the judgment entered in the underlying case, which showed they have final judgment on severable claims, to argue they are entitled as a matter of law to a ruling of favorable termination and lack of probable cause. In the alternative, the Chavezes requested that if the court denied their motions that it make a determination on the issues "as a matter of law without [them] being presented to the jury."
On the date set for jury trial, the court granted Mendozas motion to bifurcate the favorable termination/settlement issues for the court to decide. After excusing a jury panel that had been sent to the court before the bifurcation grant, the court proceeded to hear the matter, limited to "favorable terminations, terms of settlement, negotiations, what people felt they gave away, what they didnt give away, . . . those types of things." The court also gave Mendozas counsel "a heads-up" that he had to "get around" the Tabaz v. Cal Fed Finance (1994) 27 Cal.App.4th 789 (Tabaz) case cited by the Chavezes counsel regarding favorable termination. After going through the various exhibits the parties wanted the court to consider and the objections to the admission of some, the court asked Chavezes counsel if he cared to call any witnesses. Thereafter, Chavezes counsel called as witnesses, Veizaga, each of the Chavezes, himself and an attorney who represented Farmers to testify about their understanding of the stipulated judgment or settlement in this case. After the court denied Mendozas motion for a nonsuit based on the evidence presented by the Chavezes, Mendozas counsel called Veizaga and another attorney from her firm who had helped in the underlying case to testify regarding the purported settlement of the entire case which would preclude a favorable termination for the Chavezes.
After entertaining further argument, the court gave the parties time to file any additional authorities on the matter, noting it would advise the parties of its rulings within an hour or two after getting the last filing. The next day, the court filed its decision in favor of Mendoza, finding "there was not a favorable termination of the underlying litigation to support this suit for malicious prosecution." As bases for its ruling, the court stated:
"A. The Court finds that the underlying action, [Mendoza I] was settled during trial, obviating any basis for a favorable termination, Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 827 [(Dalany)], or settled shortly after the completion of trial, [Ferreriera, supra, 87 Cal.App.4th at pp. 413-414]. [P] B. While the record does not contain an express waiver by [the Chavezes] of a malicious prosecution action pursuant to stipulated judgments in [Mendoza I], uncontradicted evidence supports the finding that such waiver was raised in open court by Attorney Veizaga, and that the court responded that [it] considered such waiver part of the stipulated judgment agreement. Defendants Chavez were present, as was their counsel . . ., and neither they nor their counsel responded in the negative or corrected the trial court. This Court finds the waiver assured by the trial court was adopted by the Chavezes by their silence at this crucial time. Attorney Veizagas reliance upon this silence, while imprudent, was reasonable. [The Chavezes counsel] testified he purposely avoided mention of the intent of the Chavez defendants to proceed with the malicious prosecution suit while negotiating settlement of the Note causes of action. Obviously, this avoidance was occasioned by his recognition that resolution of the three Note causes of action would be in serious jeopardy if the intentions of the Chavezes were known at that time. But for the expectation that all claims were being settled, Attorney Veizaga testified she would not have advised her client to settle the Note causes of action, reduced to a stipulated judgment. [P] C. Considering the underlying judgment as a whole, Enriqueta Mendoza was the prevailing party and was awarded costs, fees, and a judgment of $ 166,197.80 as against both Chavez defendants. Freidberg v. Cox (1987) 197 Cal. App. 3d 381, 242 Cal. Rptr. 851[, 385 (Friedberg)]. [P] D. This Court has read and considered Tabaz . . . and is familiar with the rule of severability. A review of Tabaz and like cases cited for such rule reveals that each malicious prosecution plaintiff prevailed overall, usually to a great extent, in the underlying case. Having first decided the underlying judgment as a whole favored the then-defendant, the courts go on to determine whether the causes of action on which the then-plaintiff prevailed are severable, i.e., dealt with a different matter. If severable, the remaining claims upon which the then-defendant prevailed support the later suit for malicious prosecution. This process of analysis protects the one final judgment rule, the purpose of which is to protect judgments from collateral attack while still affording a mixed decision to support the disfavored action of malicious prosecution. [P] In the case at bar, while the claims upon which the Chavez defendants prevailed in [Chavez I] are obviously severable, overall Mr. and Mrs. Chavez did not prevail in the action and are not entitled to a finding of favorable termination, a necessary element of this malicious prosecution action. [P] E. Judgment is therefore awarded on behalf of defendants Enriqueta Mendoza and Maria Louisa Veizaga who are deemed the prevailing parties in this action and who are entitled to reasonable costs. [P] F. As the trial of this matter concluded within one day and no Statement of Decision was requested pursuant to . . . section 632 at that time, this Decision shall constitute the final ruling of the Court. Defendants . . . are ordered to prepare a Judgment reflecting this decision."
The court subsequently denied the Chavezes motion to set aside or vacate the January 16, 2002 judgment so entered or for a new trial, and affirmed that earlier ruling and judgment. The Chavezes timely appealed from the judgment.
DISCUSSION
I
CHAVEZES APPEAL
The Chavezes contend the trial court erred in finding no favorable termination of the underlying Chavez I lawsuit sufficient to support their malicious prosecution action. They specifically argue the court exceeded its jurisdiction and denied them their right to a jury trial by making factual findings during the bifurcated proceeding. They also assert the findings and judgment are contrary to law of the case and the law governing favorable termination, and that there was no final settlement of the entire case or a waiver of any right to bring a malicious prosecution action. Because we find the claims of the underlying action upon which this malicious prosecution case were brought were favorably terminated for the Chavezes, we reverse. We explain.
Preliminarily, we note the Chavezes arguments the trial court exceeded its jurisdiction and denied them their right to a jury trial by resolving certain factual matters during the bifurcated trial on the legal issue of whether the underlying action had sufficiently terminated in their favor to support their current malicious prosecution case are not well-taken. As the record reflects, the Chavezes initially brought an in limine motion to have the court determine the legal favorable termination issue rather than have that matter go to the jury. Although the court denied that motion, it reconsidered the matter on the day of trial when Mendoza brought a motion to bifurcate that issue before having the remaining matters go to the jury. After some discussion, the court granted the motion and proceeded with a court trial on the issue, permitting the Chavezes to present evidence and witnesses on the legal question of whether the underlying case had terminated in their favor. The Chavezes called five witnesses and presented numerous documents for the court to consider in making its determination. At no time before the court issued its ruling on such determination did the Chavezes object to the bifurcation, the taking of evidence or the court fully determining the matter before it. Under such circumstances, the Chavezes are precluded from claiming reversible error due to the courts procedure in determining the legal question of favorable termination. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403, 981 P.2d 79; Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743.)
Moreover, the element of favorable termination is a legal question for the court to decide. (Graham, supra, 72 Cal.App.4th at p. 1149.) Such question "calls for a termination reflecting on the merits of the action and the plaintiffs innocence of the misconduct alleged. [Citations.] When the proceeding terminates other than on the merits, the court must examine the reasons for termination to see if the disposition reflects the opinion of the court or the prosecuting party that the action would not succeed. If resolution of the underlying action leaves a residue of doubt about the plaintiffs innocence or liability, it is not a favorable termination sufficient to support a cause of action for malicious prosecution. [Citation.]" (Ibid .) As the court in Graham noted, "favorable termination can occur short of a trial on the merits, but it must bear on the merits. Thus a plaintiff does not establish favorable termination merely by showing that he or she prevailed in an underlying action. [Citation.]" (Ibid .)
In this case, the court was properly given the favorable termination issue which included the additional legal issue of whether the underlying case terminated by settlement, an issue raised by Mendoza. To resolve the matter, the court necessarily became the independent trier of fact to determine those legal questions. In other words, it was the trial judge, and not the jury, who was to decide in light of all the facts whether there was a settlement and whether there was a favorable termination for the Chavezes. The bifurcation procedure used by the trial court did not exceed its jurisdiction and did not violate the Chavezes right to jury trial.
Generally, when a trial court is called upon to determine whether the parties have entered into a valid and binding settlement of all or part of a case, the court has the discretion to receive oral testimony as well as reviewing documentary evidence in order to make such determination. (See Corkland v. Boscoe (1984) 156 Cal. App. 3d 989, 994, 203 Cal. Rptr. 356.)
Nor do we find merit in the Chavezes claim that the courts findings and judgment are contrary to the "law of the case" as found in Chavez I. As already mentioned above, in Chavez I we clearly stated we were "not expressing any view on whether there will be any merit to the Chavezes claims at trial." (D037586, at pp. 12-13.) We merely recognized in Chavez I that the Chavezes had adequately met their anti-SLAPP motion burden to show a prima facie case of malicious prosecution, including the favorable termination element, and did not address whether they had met their trial burden on any element. (Id. at pp. 9-12.)
The question therefore remains whether the Chavezes met their burden of showing favorable termination at the bifurcated trial. Because the issue is one of law and for the court to decide, our review is de novo. (Graham, supra, 72 Cal.App.4th at p. 1149.) To assist in resolving this question, we revisit the law concerning the favorable termination element of malicious prosecution.
Although a malicious prosecution action "has been dubbed a disfavored tort because of its potential chilling effect on the willingness of the ordinary citizen to pursue resolution of disputes in court[ (citation),] it is equally true that this convenient phrase should not be employed to defeat a legitimate cause of action. . . . ". . . [Citations.]" (Graham, supra, 72 Cal.App.4th at p. 1148.) As our Supreme Court has recognized, "the malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice . . . . In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action . . . and for mental or emotional distress [citation]. [P] The judicial process is adversely affected by a maliciously prosecuted cause not only by the clogging of already crowded dockets, but by the unscrupulous use of the courts by individuals . . . as instruments with which to maliciously injure their fellow men. [Citation.]" (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50-51, 118 Cal. Rptr. 184, 529 P.2d 608 (Bertero), fn. omitted.)
"In order to establish a cause of action for malicious prosecution of [a] civil proceeding, a plaintiff must demonstrate that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiffs, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]." (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871, 254 Cal. Rptr. 336, 765 P.2d 498.) Regarding the element of concern on this appeal, favorable termination, the plaintiff "must plead and prove that the prior judicial proceeding which is the basis of the [malicious prosecution] suit terminated in plaintiffs favor. [Citation.] Plaintiff need not show a verdict or a final determination on the merits; legal termination will suffice. [Citation.] The termination, however, must reflect on the merits of the underlying action. [Citation.]" (Berman v. RCA Auto Corp (1986) 177 Cal.App.3d. 321, 323, 222 Cal. Rptr. 877.) Because "the theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused . . . [citation]" (Lackner v. Lacroix (1979) 25 Cal.3d 747, 750), such element necessarily "requires a termination reflecting the merits of the action and plaintiffs innocence of the misconduct. [Citation.]" (Pattiz v. Minye (1998) 61 Cal.App.4th 822, 827 (Pattiz).) "Where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if the termination reflects the opinion of either the court or the prosecuting party that the action would not succeed." (Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814.)
As mentioned above, the plaintiff must thus "establish more than that he prevailed in the underlying action. [Citation.] He must prove a termination that reflects on his innocence. [Citation.] If the resolution of the underlying action leaves some doubt concerning plaintiffs innocence or liability, it is not a favorable termination sufficient to allow a cause of action for malicious prosecution. [Citation.]" (Pattiz, supra, 61 Cal.App.4th at p. 827.) "Accordingly, sometimes the line between an unfavorable and a favorable termination is drawn between technical or procedural defenses which end the case (e.g., statute of limitations) and substantive defenses which have the same result. [Citation.] In other situations the conduct of the plaintiff in the prior action permits the inference that the complaint was without merit — for example when a plaintiff voluntarily dismisses or suffers a dismissal for failure to prosecute. [Citations.] Conversely, a dismissal which results from a settlement is usually not a favorable termination because the plaintiffs decision to settle does not reflect the plaintiffs conclusion the action was without merit. [Citations.]" (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 128-129.)
Here, we must decide whether the judgment entered in the underlying action provides the Chavezes a favorable termination that can give rise to an action for malicious prosecution. In this regard it is important to note that in addition to the above law, our Supreme Court has long recognized that in order to maintain a malicious prosecution action, ""it is not necessary that the whole proceeding be utterly groundless, for, if groundless charges are maliciously and without probable cause, coupled with others which are well founded, they are not on that account the less injurious, and, therefore, constitute a valid cause of action."" (Singleton v. Perry (1955) 45 Cal.2d 489, 497, 289 P.2d 794 (Singleton).) Although the Supreme Court has further clarified that the element of probable cause is distinct from the element of favorable termination, and has acknowledged that probable cause is only an issue that arises with regard to theories of claims within an action after the favorable termination of the earlier action as a whole has been reached (Crowley v. Katleman (1994) 8 Cal.4th 666, 686, 881 P.2d 1083 (Crowley)), it has nonetheless conceded that whether a "partial favorable termination" of a case "is sufficient to support a malicious prosecution action is, again, a question of policy under the substantive law of that tort." (Ibid.)
The substantive law of the tort of malicious prosecution since Singleton, supra, 45 Cal.2d 489, has developed to the extent that a plaintiff in such action "is not precluded from establishing favorable termination where severable claims are adjudicated in his or her favor. [Citation.]" (Graham, supra, 72 Cal.App.4th at p. 1153.) In Albertson v. Raboff (1956) 46 Cal.2d 375, 295 P.2d 405 (Albertson), our Supreme Court permitted the favorable termination element of a malicious prosecution claim to be shown by "that part of the judgment in the former action that determined that defendant had no interest in or a right to a lien upon plaintiffs real property,[ which was separate from an action for money damages found against him.]" (Id. at p. 382.) The court found such portion of the judgment "is now final and constitutes a termination of that separable part of the proceeding favorable to plaintiff." (Ibid.) This "severability rule" has been followed by various Courts of Appeal confronted with similar situations where the underlying case on which an action for malicious prosecution was based on severable claims. (See Graham, supra, 72 Cal.App.4th at pp. 1149-1153; Tabaz, supra, 27 Cal.App.4th at pp. 792-794; Jay, supra, 213 Cal. App. 3d at pp. 368-371.) As to those claims, the courts have uniformly found the element of favorable termination for a malicious prosecution could have been or was shown when the plaintiff pled and proved he received a favorable adjudication or termination which reflected his innocence on the merits of the misconduct alleged in those severed counts. (Ibid.)
Applying the above substantive law of malicious prosecution regarding the element of favorable termination in this case, including the rule of severability, we find that the Chavezes satisfied their burden of proving the severable causes of action of the underlying lawsuit terminated in their favor so that they may go forward with their malicious prosecution action. The record reflects that after a court trial in the underlying case in which Mendoza had sued the Chavezes and Farmers on eight causes of action, the court granted the Chavezes motions for nonsuit on the first, third, fourth and fifth causes of action, specifically finding there was no evidence to support any of those claims for alleged breach of fiduciary duty, fraud in connection with loans, "over-insuring, misappropriated cash payments, and converted jewelry." The courts statements made with reference to such findings reflect on the innocence of the Chavezes as to those claims of misconduct. The courts findings were then incorporated into the judgment entered on March 31, 2000 in the underlying action.
Also incorporated into the judgment of the underlying action was a judgment the court accepted in open court in Mendozas favor based on a stipulation of the parties regarding the sixth, seventh and eighth causes of action. The stipulated judgment provided:
"Plaintiff . . . Mendoza, pursuant to an election of remedies elected to receive judgment on the Sixth cause of action for Breach of Contract and waived entitlement to judgment on the Seventh and Eighth causes of action for Constructive Trust and Foreclosure of Mortgage; the stipulating parties waived the necessity of filing a Memorandum of Costs, Motion to Tax Costs, Motion to Fix Reasonable Attorney Fees and stipulated that Plaintiff . . . Mendoza was entitled to recover reasonable attorney fees and costs, in the combined and total sum of $ 5,000.00 from Defendants [Chavezes]."
This stipulated judgment "with respect to the sixth cause of action in the [total] sum of $ 166,197.80" was reached after the court had given the parties time to confer as to how to proceed with the last three causes of action concerning a promissory note which the Chavezes had admitted in their answer was owed Mendoza.
Because the judgment after trial not only contains this stipulated judgment in Mendozas favor, but also the judgments regarding the first, third, fourth and fifth causes of action concerning different matters which were entered in the Chavezes favor, under the reasoning of Crowley, Albertson, Singleton, Tabaz, Graham, andJay, we conclude the terminations of these individual causes of action adjudicated in the Chavezes favor are severable from the claims on the promissory note, and support the favorable termination requirement for this malicious prosecution action. Because the trial court found otherwise, the judgment must be reversed.
Although we are mindful that it is the trial courts ruling, not its reasoning, that we review on appeal (DAmico v. State Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal. Rptr. 786, 520 P.2d 10), we briefly comment on several points concerning the courts reasoning. Below, Mendoza had argued that the Chavezes could not rely on the individual, severable causes of action of the underlying case to support the element of favorable termination for this malicious prosecution case because the judgments on those were subsumed by the total monetary judgment in her favor based on a final settlement of the case. Mendozas position appears to have been adopted by the trial court in finding the evidence at the bifurcated trial supported a determination there had been a valid settlement of the entire underlying case. Although we will usually defer to a trial courts resolution of a disputed factual matter if there is substantial evidence to support it, where such determination, as here, does not support the courts legal conclusion based on such finding, we accord it little weight. Because the law requires the parties, not their attorneys, to a settlement personally acknowledge either "in writing or orally before the court that they have settled the case" (Levy v. Superior Court (1995) 10 Cal.4th 578, 585-586, 896 P.2d 171), the finding of a valid settlement based on facts that the court assured one partys attorney the settlement would encompass more than what was read into the record in open court, i.e., that no malicious prosecution claim would follow, without express oral or written agreement of the parties, is not supported as a matter of law. (Accord, Johnson v. Department of Corrections (1995) 38 Cal.App.4th 1700, 1708.) Thus, even if the Chavezes were present in open court when the purported interchange occurred between the court and Mendozas attorney, reliance on the Chavezes silence is not enough to show a valid settlement agreement which included a waiver of bringing a malicious prosecution action. The facts in Dalany and Ferreira, upon which both Mendoza and the trial court here relied to find such a settlement, are distinguishable from those in the case underlying this action. (See Ferreira, supra, 87 Cal.App.4th at pp. 412-413; Dalany, supra, 42 Cal.App.4th at pp. 825-826, 828.)
Further, we cannot find that the "one final judgment rule" or the requirement that a previous lawsuit be reviewed as a whole to determine whether there was favorable termination for a plaintiff in a malicious prosecution case is offended by applying the rule of severability in this case. As our Supreme Court recognized in Crowley, it had earlier permitted a finding of favorable termination for a malicious prosecution action in Albertson, supra, 46 Cal.2d 375, "on the settled rule that an appeal may be taken from only a portion of a judgment when that portion is severable in the sense that the issues raised in the appeal can be resolved without regard to the issues determined by the portion of the judgment that was not appealed. [Citation.]" (Crowley, supra, 8 Cal.4th at p. 685.) Because the Chavezes are not bringing a malicious prosecution action based on that portion of the judgment concerning the stipulated judgment entered on the promissory note for the sixth cause of action of the underlying lawsuit, and the action brought can be determined without regard to that note, it does not violate the one final judgment rule or the rule that the prior judgment be considered "as a whole" to permit a favorable termination based on the separate causes of action adjudicated in their favor. The courts reliance on Friedberg, supra, 197 Cal. App. 3d 381, in this case to find otherwise is distinguishable. (See Crowley, supra, 8 Cal.4th at pp. 684-686; Jay, supra, 213 Cal. App. 3d at p. 369.)
Moreover, contrary to the trial courts determination, whether Mendoza was the "prevailing party" as that term is used for purposes of awarding costs and fees on the sixth cause of action, is simply not relevant to whether the Chavezes achieved a favorable termination of the underlying action on the severable causes of action for the tort of malicious prosecution. (See Jay, supra, 213 Cal. App. 3d at p. 371, fn. 3.)
II
MENDOZAS MOTION FOR SANCTIONS
At the time Mendoza filed her respondents brief, she also filed a motion for sanctions, requesting such an award against the Chavezes for filing a frivolous appeal. Although we have found that several of the arguments raised on appeal by the Chavezes have no merit, in light of our general reversal of the judgment entered against the Chavezes, we cannot find that the taking of their appeal was frivolous or that it was prosecuted for an improper motive. (See § 907; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651, 183 Cal. Rptr. 508, 646 P.2d 179.) Consequently, an award of sanctions is not appropriate, and we deny Mendozas motion for sanctions.
DISPOSITION
The judgment is reversed. The motion for sanctions is denied. Costs on appeal to the Chavezes.
WE CONCUR: NARES, J., HALLER, J.