Kennedy v. Byrum

Upon the trial of the action, the court found that the contract, a copy of which had been given to the plaintiff, was not a forged contract as alleged by him but was the contract which had been entered into by the plaintiff and the defendant automobile dealer. The allegations of the cross-complaint were found to be true except that the damages were found not to be “in any sum in excess of Five Hundred Dollars ($500.00) general damages and One Hundred Dollars ($100.00) punitive damages.” The judgment was that the plaintiff take nothing by his complaint and that the cross-complainants recover the sum of $600, together with their costs. The present appeal is from the judgment and from an order denying the motion of the plaintiff and cross-defendant to tax costs with respect to the fee of an expert witness.

The plaintiff and cross-defendant makes an attack upon the findings of fact. For instance, he asserts that certain allegations which were admitted to be true were found by the court to be false. However, no finding is necessary as to any allegation admitted by the pleadings and a finding contrary thereto cannot stand. (See County of Los Angeles v. Beverley, 126 Cal.App.2d 89 , 92 [ 271 P.2d 965 ].) He further argues that there are inconsistencies in the findings of fact. But, as stated in Berry v. Crowell, 55 Cal.App. 534 [ 203 P. 835 ], at page 537: “If sufficient can be gathered from the whole of the findings of the court that material issues are fairly determined, the finding will support the judgment. ‘It was not necessary that the facts as found should be in any particular form or follow the pleadings. If the truth or falsity of each material allegation in issue can be demonstrated from the findings, the law is complied with.’ (Ready v. McDonald, 128 Cal. 663 [ 79 Am.St.Rep. 76 , 61 P. 272 ]; Millard v. Legion of Honor, 81 Cal. 340 [ 22 P. 864 ].) So, also where findings are seemingly contradictory. (American Nat. Bank v. Donnellan, 170 Cal. 15 [Ann.Cas. 1917C, 744, 148 P. 188 ].)” The findings of fact as to the material

Insofar as the appellant attacks the sufficiency of the evidence to sustain any material finding of fact of the trial court, the power of the appellate court is limited to a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. When more than one inference can reasonably be deduced from the facts, the reviewing court cannot substitute its deductions for those of the trial court. (Grainger v. Antoyan, 48 Cal.2d 805 , 807 [ 313 P.2d 848 ].)

The plaintiff did not contend that he had signed a partially incomplete form of contract in which figures were later inserted. (See, e.g., Foster v. Masters Pontiac Co., 158 Cal.App.2d 481 , 484 [ 322 P.2d 592 ].) Rather it was his testimony that certain figures in the only conditional sales contract which he had signed were different from those set forth in a contract claimed by the defendants to be the one he had signed and a copy of which he received the next day when the automobile was delivered. In two places the contract in question bore a signature which the plaintiff and his wife testified was not his signature. However, Joseph Petty, who was the sales manager of the automobile concern at the time, testified that he saw Mr. Kennedy sign the contract. Furthermore, John J. Harris, a handwriting expert, testified that in his opinion there had been no alterations made in the contract, that the carbon copies were carbon duplicates made at the same time as the original, and that the contract bore the signatures of Mr. Kennedy as evidenced by a comparison of the disputed signatures with exemplars shown to be genuine. Consequently, it is clear that the trier of fact was warranted in reaching the conclusion that the contract in question was the one which Mr. Kennedy had signed. No basis for a reversal of the judgment appears in the record with respect to the disposition made of the issues raised by the complaint and the answer.

As to their cross-complaint in which they sought to recover damages for malicious prosecution, the cross-complainants were required to prove (1) a favorable termination of the former suit; (2) want of probable cause; and (3) malice. (Masterson v. Pig'n Whistle Corp., 161 Cal.App.2d 323 , 335 [ 326 P.2d 918 ].)

The record shows that there had been a termination of the earlier action in favor of the cross-complainants in the present

With respect to the matter of the lack of probable cause, this court stated in Masterson v. Pig'n Whistle Corp., supra, 161 Cal.App.2d 323 , at page 335: “Probable cause is synonymous with reasonable cause. One who commences a civil suit acts upon probable cause if he has an honest belief, founded upon facts sufficiently strong to justify his belief, that grounds exist for the proceeding. (Hudson v. Zumwalt, 64 Cal.App.2d 866 , 872 [ 149 P.2d 457 ].) Probable cause has been defined as ‘a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. ’ (Centers v. Dollar Markets, 99 Cal.App.2d 534 , 540 [ 222 P.2d 136 ].) And, where the circumstances are such as to satisfy a reasonable man that there is no basis for suit, probable cause is lacking. (Metzenbaum v. Metzenbaum, 121 Cal.App.2d 64 , 68 [ 262 P.2d 596 ].)”

The trial court found to be true the allegation of the cross-complaint that all of the allegations of the complaint in the former action were “wholly false and untrue and were known by cross-defendant to be wholly false and untrue at the time of the commencement of said other action.”

It is true that when the taking of evidence had been completed the trial judge made an oral statement which was inconsistent with his later written opinion and with his findings of fact as to the cross-complaint. But as said in Shasta Water Co. v. Croke, 128 Cal.App.2d 760 [ 276 P.2d 88 ], at pages 764-765: “The court’s prior oral statement was not a finding in the technical meaning of the word, as findings must be in writing. (Code Civ. Proc., § 632.) Such prior oral statements as to its evaluation of the evidence do not restrict the court’s power to make contrary formal findings. (Scholle v. Finnell, 173 Cal. 372 , 376 [ 159 P. 1179 ]; Putman v. Superior Court, 209 Cal. 223 , 227 [ 286 P. 425 ]; Huth v. Katz, 30 Cal.2d 605 , 609 [ 184 P.2d 521 ].) ” In Diaz v. Shultz, 81 Cal.App.2d 328 [ 183 P.2d 717 ], the court stated at page 333: “. . . the deliberations of courts are conclusively merged in their final orders, decisions and judgments, and . . . the oral or even written opinions of trial judges may not be considered for the purpose of reversing such orders, decisions or judgments.”

Reliance in good faith on the advice of counsel is a defense to an action for malicious prosecution, inasmuch as such defense shows probable cause. (Schubkegel v. Gordino, 56 Cal.App.2d 667 , 672 [ 133 P.2d 475 ]; Montz v. Nevins, 40 Cal.App. 202 , 207 [ 180 P. 537 ].) But such defense is not available unless there has been a disclosure to the attorney of all of the pertinent facts within the knowledge of the client.

Malice may be inferred from a want of probable cause. (Masterson v. Pig'n Whistle Corp., supra, 161 Cal.App.2d 323 , 338.) That such inference was the basis for the trial court’s ultimate determination in the present ease appears from the written opinion filed sometime after the court’s oral comments, although the particular language was used with respect to the matter of exemplary damages. As has been noted, that opinion may be considered for the purpose of discovering the process by which the trial judge arrived at his conclusion. (Union Sugar Co. v. Hollister Estate Co., supra, 3 Cal.2d 740 , 750.) Therein the court stated: “. . . it being the feeling of the Court that since Mr. Kennedy must necessarily have known that the contract in question was genuine that the filing of a suit based upon the contention that it was a forgery was necessarily the consequence of malice.” (Cf. Albertson v. Raboff, supra, 46 Cal.2d 375 , 383.)

Under the circumstances, the cross-complainants were entitled to recover as compensatory damages attorney’s fees paid by them in their defense against the claim of Mr. Kennedy in the former action. (Metzenbaum v. Metzenbaum, 121 Cal.App.2d 64 , 69 [ 262 P.2d 596 ].) The trial court could determine the reasonableness of the charges made for such legal services without recourse to expert testimony. (See Peebler v. Olds, 71 Cal.App.2d 382 , 389 [ 162 P.2d 953 ].) Moreover, the proof justified the award of exemplary damages. (See Finney v. Lockhart, 35 Cal.2d 161 , 162-163 [ 217 P.2d 19 ]; Metzenbaum v. Metzenbaum, supra, 121 Cal.App.2d 64 , 69.)

The plaintiff and cross-defendant sought to strike from the cost bill of the prevailing parties an item of $200 which was the fee of the handwriting expert for his services. His motion was denied. The propriety of the allowance of the item finds support in the record. During the course of the trial, the court asked counsel for the defendants and cross-