Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. C08-00583 & C08- 00584.
RIVERA, J.
Plaintiffs Roy Allen Nash, Christina Nash (the “Nash plaintiffs” or “the Nashes”), and plaintiff Russell Wutzke (collectively “appellants”) appeal a judgment entered after the trial court granted summary judgment to defendants Janyce Rae Wutzke, James E. Reed, and Nichols, Catterton, Downing & Reed, P.C. (collectively “respondents”) in these consolidated actions for malicious prosecution and abuse of process. We shall affirm the judgment.
Russell Wutzke is the nephew of Janyce Rae Wutzke’s late husband, Albert Wutzke. Because Russell, Albert, and Janyce Rae Wutzke share the same last name, we will refer to them by their first names. We intend no disrespect by this designation.
I. BACKGROUND
A. The Underlying Action
This case arises out of an action brought by Janyce against Russell and the Nash plaintiffs. Her attorneys were Reed and the law firm of Nichols, Catterton, Downing & Reed.
In the underlying action, Janyce alleged that she was the sole surviving owner of the Wutzke Ranch, which operated various ranching properties, and that Russell had been the foreman of one of the ranches. According to the second amended complaint, Janyce and Albert had bought a piece of farm equipment called a hay squeeze in 1991. In 1993, Russell obtained title to the hay squeeze from Albert for no consideration, without Janyce’s knowledge or consent. During that year, according to the second amended complaint, Albert was suffering from dementia and Alzheimer’s disease, and his memory was severely impaired. Albert died in 1997, and Russell left the Wutzke Ranch soon afterward, making no claim on the hay squeeze. Until 2003, the hay squeeze remained in the possession of Wutzke Ranch, which paid its registration and continued to use it in its ranching operations.
In 2003, when gathering title to farm equipment in preparation for the sale of the hay ranch, Janyce became aware that title to the hay squeeze had been transferred to Russell. She filed a notice of lien sale on December 3, 2003. Later that month, Russell and Roy Nash went to the Wutzke Ranch to take the hay squeeze. A sheriff’s deputy was called, and he informed the ranch foreman that because Russell held title to the hay squeeze, the foreman was required to allow him to take it off the ranch. Later, in a telephone conversation with Janyce, Russell and Roy Nash were informed of the dispute over the ownership of the hay squeeze. Several days later, the hay squeeze was registered in the names of Roy and Christina Nash, and title was issued in their name in January 2004.
Janyce alleged six causes of action in the underlying action: (1) rescission due to fraud and undue influence; (2) rescission due to mistake; (3) declaratory relief regarding the validity of the gift of the hay squeeze to Russell; (4) conversion as to Russell; (5) conversion as to the Nashes; and (6) enforcement of an involuntary trust as to the Nashes.
The case was tried to a jury, which rendered a verdict against Janyce and in favor of Russell and the Nashes.
B. Summary Judgment in the Current Actions
Russell and the Nash plaintiffs then brought their actions against respondents for malicious prosecution and abuse of process. Respondents moved for summary judgment.
Evidence submitted in support of the motion for summary judgment showed that in 1988, Janyce and Albert gave a piece of real property—apparently ranch property—to themselves as trustees of a trust dated June 23, 1987 (the 1987 Trust). The 1987 Trust provided that all property Albert and Janyce transferred to the trust would retain its community property status. The Wutzke Ranch bought the hay squeeze at issue in 1991. Albert transferred the hay squeeze to Russell on behalf of the Wutzke Ranch in September 1993. Janyce stated in a declaration that she was unaware of the transfer at the time. Russell promptly had the hay squeeze registered with the DMV in his name.
In April 1994, Albert had a medical evaluation. The evaluation noted that Albert’s wife had expressed concern about his deteriorating mental condition. The “presenting information” indicated Albert was suffering a progressive loss of mental abilities, including a decrease in short-term, recent, and long-term memory. The report concluded Albert, then 72 years old, was suffering from moderate dementia and major depression. His IQ was tested and his score was found to be 70, which meant he was “now functioning at a borderline mental defective range.” His long-term memory was mildly to moderately affected, and his short-term memory was severely affected. His “[p]remorbid functioning would be estimated to have been at least within normal range.” Albert’s doctor, Daniel Dahle, stated in a deposition that based on the April 1994 examination, there was “probably a 70 percent chance” that Albert was not lucid enough in September 1993 to make the decision to give the hay squeeze to Russell. At trial in the underlying action, however, Dr. Dahle testified that he saw Albert between August and October 1993, that he was not treating him for dementia or Alzheimer’s disease at the time, that Albert appeared to know where he was and why he was there, and that Dr. Dahle did not recall anything that led him to think at the time that Albert was cognitively impaired.
Albert died in 1997, and Russell stopped working for the Wutzke Ranch. According to Russell, Dinah Wilson, who was Janyce’s sister and worked at the ranch, told Russell that he could have either the hay squeeze or approximately $25,000 as his share of the profits of a timber harvest he had worked on, but that he could not have both. At the time, Russell was also involved in a dispute with the Wutzke Ranch about his entitlement to unemployment and workers’ compensation benefits. The hay squeeze remained at the ranch.
In December 2003, Janyce filed a notice of lien sale. The notice claimed a lien for storage of the vehicle at a rate of $25 per day, for a total amount of $4,550, and stated that Russell was the registered owner. Russell appeared before the lien sale, stopped the sale with the aid of a sheriff’s deputy, and sold the hay squeeze to the Nashes.
Our task in reviewing the evidence has been made more difficult by Russell’s practice of supporting factual assertions by citations to the statements of undisputed facts below, rather than to the underlying evidence. We remind the parties of their obligation to provide explicit page citations to the record. (See Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.)
C. The Trial Court’s Ruling
The trial court granted defendants’ motion for summary judgment, concluding that the evidence showed Janyce had believed the hay squeeze was community property, since it had been purchased during her marriage to Albert, and as such it could not be given away without both spouses’ consent; that the Nashes knew Janyce claimed an interest in the hay squeeze when they bought it from Russell; and that an action for abuse of process lay only where there was an act or threat beyond the scope of the process.
II. DISCUSSION
A. Standard of Review
“We review a grant of summary judgment de novo. [Citation.] In performing our de novo review, we employ a three-step analysis. ‘First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact.’ [Citations.]... Any evidence we evaluate is viewed in the light most favorable to the plaintiff as the losing party; we strictly scrutinize the defendant’s evidence and resolve any evidentiary doubts or ambiguities in the plaintiff’s favor. [Citation.]” (Barber v. Chang (2007) 151 Cal.App.4th 1456, 1462-1463.)
B. Defendant’s Objections to Evidence
We first consider evidentiary issues raised by appellants. Respondents raised various objections to evidence below, which the trial court did not consider because the objections did not comply with California Rules of Court, rules 3.1354(b) and 3.1354(c). Russell contends the objections should be deemed waived for purposes of appellate review, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1 (Ann M.), which concluded that where a party fails to obtain a ruling on objections to evidence, the objections are waived and the objectionable evidence must be treated as having been admitted in evidence and therefore part of the record. Also citing Ann M., the Nashes appear to contend the assertions in their separate statement of undisputed facts should also be deemed undisputed because respondents did not secure a ruling on their objections to that statement. Ann M. has since been disapproved on this point. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.) Moreover, Ann M. did not rule that the statements asserted in the separate statements must be deemed undisputed, but that the evidence upon which the statements rest must be treated as admitted in evidence. (Ann M., supra, 6 Cal.4th at p. 670, fn. 1.)
In any case, respondents do not challenge the trial court’s ruling on their objections. Accordingly, we will treat the underlying evidence as having been admitted in evidence, but are not bound to treat appellants’ interpretation of that evidence as true.
C. Malicious Prosecution
To prevail in a malicious prosecution action, “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 [the plaintiff’s] favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ [Citations.]” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872 (Sheldon Appel).) The question of probable cause is one of law to be determined by the court (id. at pp. 875-877), and is determined under an objective standard (id. at p. 881). That is, the court determines whether the claim in the initial lawsuit was in fact objectively tenable, without looking into the party’s subjective belief about the tenability of the claim. (Id. at pp. 881-882; see also Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.) “ ‘A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.’ [Citation.]... ‘In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) An action for malicious prosecution lies when at least one of a number of alternative theories of recovery is maliciously asserted. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 55-57 & fn. 5; see also Crowley v. Katleman (1994) 8 Cal.4th 666, 671.)
The tort of malicious prosecution is disfavored, both because of its potential to impose a chilling effect on a citizen’s willingness to bring a civil action, “ ‘and because, as a means of deterring excessive and frivolous lawsuits, it has the disadvantage of constituting a new round of litigation itself.’ [Citation.]” (Zamos v. Stroud (2004) 32 Cal.4th 958, 966.) However, this principle should not be used to defeat a legitimate cause of action. (Ibid.)
1. Ownership of Hay Squeeze
Appellants argue that even if Russell was not the rightful owner, the Wutzke Ranch or the 1987 Trust, not Janyce, was the proper party to bring the claims regarding the ownership of the squeeze. It is true that there is evidence that certain real estate, apparently used by the Wutzke Ranch, had been transferred to the 1987 Trust, which gave Albert and Janyce as trustees the right to convey trust property. However, even assuming the hay squeeze was used on real property held in the 1987 Trust, the evidence does not show that the Wutzke Ranch was a separate legal entity, rather than a name under which Albert and Janyce did business, or that the ranch as a business was held by the trust. Indeed, in her deposition, Janyce was asked if the Wutzke Ranch was licensed to do business, and she answered, “[I]t wasn’t a business, business. It was a personal owned on our taxes.” Moreover, although the checks used to buy the hay squeeze in 1991 had only Albert’s name on them, a bank ledger for the same account in 1993 showed both Albert and Janyce as account holders. In the circumstances, it was not objectively unreasonable to bring the underlying action in Janyce’s name.
In support of his contention that Janyce did not own the hay squeeze, Russell also relies on the Notice of Pending Lien Sale, signed by Janyce under penalty of perjury, which stated that Russell was the registered owner of the hay squeeze, and which did not list herself as either the legal owner or as an interested party. It is clear that the hay squeeze was in fact registered in Russell’s name. In her action, Janyce challenged the circumstances under which he had become the registered owner and took the position that she had a right to the vehicle. The notice does not lead us to conclude that it was objectively unreasonable for her or her attorneys to pursue her claim to the hay squeeze.
2. Albert’s Mental State
One of the foundations of the underlying action was the allegation that at the time Albert gave the hay squeeze to Russell, he was suffering from dementia and Alzheimer’s disease, and that Russell took advantage of Albert’s diminished mental condition. Based on this record, it was not unreasonable to prosecute this claim. There was evidence that seven months after Albert gave Russell the hay squeeze, he had an evaluation of his mental function, with a presenting complaint of “[p]rogressive loss of mental abilities, ” including “[i]ncrease[d] dependency on others to make decisions and orientate [sic] self to the environment” and “[d]ecrease in short term, recent, and long term memory.” He was diagnosed with major depression and moderate dementia. His overall IQ score of 70 indicated he was “functioning at a borderline mental defective range, ” his “[l]ong term memory and reality testing” were moderately to mildly affected, and his short term memory was severely affected. Although Dr. Dahle testified at trial that he was not treating Albert for dementia or Alzheimer’s disease in September 1993, he testified in deposition that there was “probably a 70 percent chance” that in September 1993, Albert was not lucid enough to make the decision to give the hay squeeze to Russell. It was not objectively unreasonable to pursue claims based on the theory that Albert was suffering from a mental condition that affected his ability to make decisions.
The first cause of action, for rescission due to fraud and undue influence, alleged that in 1993, Albert was suffering from the above-mentioned mental problems; that Russell had a confidential and fiduciary relationship with Albert as his nephew and ranch foreman, and that Russell exerted undue influence over Albert, used the confidence Albert reposed in him, and took advantage of Albert’s diminished mental condition to obtain title to the hay squeeze for no consideration; that he made no claim on the hay squeeze from the time he left the Wutzke Ranch until December 2003 and concealed his claim to possession of it during that time; and that employees of the Wutzke Ranch continued to pay the DMV registration of the hay squeeze during the intervening years, without pointing out to Janyce that it was registered in Russell’s name.
“Undue influence consists: [¶] 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; [¶] 2. In taking an unfair advantage of another’s weakness of mind; or, [¶] 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.” (Civ. Code, § 1575.) The existence of a confidential relationship presents a question of fact to be decided on a case by case basis. Such a relationship may exist whenever one person reposes trust and confidence in the integrity and fidelity of another. (O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 153.) Where undue influence is shown, rescission is an appropriate remedy. (Id. at pp. 158-159; see also Civ. Code, § 1689, subd. (b)(1).) As to the fraud portion of this cause of action, respondents contend fraud is found in Russell’s concealment of the gift of the hay squeeze and of his continuing claim of ownership over it. (Civ. Code, § 1710, subd. 3. [deceit defined in part as the “suppression of a fact, by one who is bound to disclose it...”].)
Under the facts here, this cause of action was not objectively untenable. There is evidence from which it could be inferred that Albert suffered “weakness of mind” (Civ. Code, § 1575) at the time he gave the hay squeeze to Russell. From the facts that Russell immediately registered the hay squeeze in his own name and that the transaction was not disclosed to Janyce, it could also reasonably be inferred that in consummating the transaction, Russell took advantage of Albert. Moreover, although there is evidence that at least one other ranch employee was aware of the transfer of ownership and that Janyce’s sister, who worked for her, may have been told of it, there is also evidence that Janyce was personally unaware of the transfer until 2003. The fact that the jury did not accept this claim for rescission does not mean it was objectively untenable.
Russell argues, however, that the lack of basis for the first cause of action is shown by Janyce’s deposition testimony, in which she stated that before Albert died, she did not believe Russell had exercised undue influence over him; that when she first met with Reed, she did not have evidence that Albert was mentally incapable at the time of the transfer; that when her attorney intended to include a claim for undue influence, she “figured that was legal... jumbo-jumble [sic], ” that—at some point that is not clear from the record—she did not believe Russell had done anything intentionally fraudulent toward Albert; and that when she learned Reed was including a cause of action for fraud in her complaint, she asked him whether it was necessary. The question for us to decide, however, is not whether Janyce understood the possible legal theories or the legal terminology her attorney used, but whether the first cause of action was objectively tenable. We conclude that it was.
Janyce was asked in her deposition whether at the time she first met with Reed, she had evidence that Albert was mentally incapable at the time of the transfer. After some clarification, she responded, “No.” When asked if the theory had been developed as the case went on, she replied, “Oh, I never went into this at all about Al’s mental capacity. I went in for the idea that I felt the squeeze belonged to me and that Russell took it.”
3. Gift of Community Property
The second cause of action, for rescission due to mistake, alleged that a mistake of fact existed at the time the gift was made because Albert had no right to make a gift of community property without Janyce’s written consent. Under Family Code section 760, unless otherwise provided by statute, all property acquired by a spouse during a marriage, while domiciled in California, is community property. Family Code section 1100, subdivision (b), provides that “[a] spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse.” (See also Estate of Bray (1964) 230 Cal.App.2d 136 [after death of husband who had given son gift of community property without wife’s knowledge, wife entitled to half of value of property].) As we have discussed, while the checks with which the hay squeeze were purchased had the name of Albert only, they were drawn on an account that a 1993 ledger showed was in the names of both Albert and Janyce. We thus cannot conclude this cause of action was objectively untenable.
For the same reasons, we conclude the third cause of action, for declaratory relief, was supported by probable cause. Janyce alleged that a dispute had arisen between her and Russell related to the validity of the gift of the hay squeeze because it was obtained through undue influence and was a gift of community property without consent. As we have discussed, the parties in fact had such a dispute, and Janyce’s causes of action based on undue influence and community property were properly asserted. We reach the same conclusion as to the cause of action for declaratory relief.
4. Conversion
In her fourth cause of action, for conversion against Russell, Janyce alleged that she was the owner and entitled to possession of the hay squeeze, that any claim Russell might have had was lost by her adverse possession of the hay squeeze or by Russell’s failure to recover his property within the three-year statute of limitations for conversion against plaintiff, and that he used the sheriff’s office to “enforce his unlawful title and converted the same to his own use.” The fifth cause of action, for conversion against the Nashes, incorporated the previous allegations and alleged that Nashes had sold the hay squeeze for $64,000.
The elements of a cause of action for conversion are: “(1) the plaintiff’s ownership or right to possession of personal property; (2) the defendant’s disposition of the property in a manner that is inconsistent with the plaintiff’s property rights; and (3) resulting damages. [Citation.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)
Appellants contend this cause of action was without merit because Janyce stated in the DMV lien notice that Russell was the registered owner of the hay squeeze, and she did not claim any interest in the vehicle. According to Russell, this notice constituted an implied ratification of the alleged taking. While the jury might have concluded this evidence undermined Janyce’s claim to ownership of the hay squeeze, we do not view it as dispositive. The record shows that Russell was in fact registered as the owner; Janyce challenged the manner in which he gained that ownership. As we have already discussed, Janyce’s claim to ownership of the hay squeeze—or to her community property portion of it—was objectively tenable, and we reach the same conclusion as to her causes of action for conversion.
5. Involuntary Trust
The sixth cause of action, asserted against the Nashes, was for enforcement of an involuntary trust. Janyce alleged that the Nashes held the hay squeeze in an involuntary trust and sold it in breach of their fiduciary duty as trustees.
Civil Code section 2224 provides: “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” We have already concluded that Janyce could properly assert her cause of action alleging that Russell gained title to the hay squeeze through mistake. The question is whether a cause of action alleging that the Nashes acquired the vehicle subject to a trust was objectively unreasonable.
The “bona fide purchaser” rule establishes that “[w]here defendants, who are themselves innocent of any act of wrongdoing, are shown by the pleading to have acquired the legal title to property, it is incumbent upon a plaintiff, seeking to establish a superior equitable title, to plead and prove that the defendants are not innocent purchasers for value.” (Ferguson v. Ferguson (1943) 58 Cal.App.2d 811, 814; see also Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 546 (Oakdale Village Group).) To qualify as such a bona fide purchaser, the holder of title must have purchased it for value and without notice of the plaintiff’s rights or of facts that would put a cautious and prudent person on inquiry. (Oakdale Village Group, supra, 43 Cal.App.4th at p. 546; Ehret v. Ichioka (1967) 247 Cal.App.2d 637, 643; see also First Fidelity Thrift & Loan Assn. v. Alliance Bank (1998) 60 Cal.App.4th 1433, 1442.) Here, Janyce alleged that before Russell took possession of the hay squeeze, she had a conversation with Russell and Roy Nash, and “they were informed of the dispute over ownership of the hay squeeze, ” and both Roy and Christina Nash acknowledged in depositions that they had been aware Janyce claimed ownership over the vehicle. In the circumstances, we cannot conclude Janyce’s cause of action based on an involuntary trust was objectively untenable.
Accordingly, we conclude the trial court acted properly in granting summary judgment as to the causes of action for malicious prosecution.
D. Abuse of Process
In virtually identical causes of action for abuse of process, appellants alleged that respondents engaged in the legal civil process to accomplish a purpose for which it was not designed, i.e., to “destroy” Russell; that Janyce falsely filled out DMV forms in order to accomplish her goals of forcing Russell to relinquish his legal rights to personal property; that she then retained Reed and the law firm of Nichols, Catterton, Downing & Reed for the purpose of causing appellants financial and emotional distress because they would not succumb to her demands; and that they were damaged in the form of attorney’s fees and costs.
“‘[T]he essence of the tort “abuse of process” lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.’” (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1822 (Stolz).) “Because the purpose of the tort is ‘to preserve the integrity of the court,’ it ‘requires misuse of a judicial process...’ [Citation.] The tort therefore does not extend to misuse of administrative proceedings... [Citation].” (Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1014; see also Stolz, supra, 25 Cal.App.4th at p. 1823.)
In alleging that respondents falsified DMV forms and hired counsel, appellants do not allege a misuse of the judicial process. These allegations accordingly fall outside the scope of the tort of abuse of process.
In their briefs on appeal, appellants contend that the pleadings filed in the underlying action, including the verifications to the complaints, constituted an abuse of process. Even if the causes of action for abuse of process could be read to include respondent’s actions in prosecuting the underlying action, we would reject this contention. The law is clear that “while a defendant’s act of improperly instituting or maintaining an action may, in an appropriate case, give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action. [Citations.]” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169; see also Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 520; Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359 [rejecting abuse of process claim where there were no facts to suggest use of any process (such as attachment or subpoena power) other than filing of suit].)
Accordingly, we conclude summary judgment was properly granted as to the causes of action for abuse of process.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J.REARDON, J.