Before Roth, P.J., Compton, J., and Beach, J.
On December 16, 1981, we filed our opinion in this matter, a copy of which is appended hereto. Subsequently the Supreme Court granted a hearing. Thereafter two events transpired. (1) The Supreme Court filed its opinion in the case of In re Marriage of Flaherty (1982) 31 Cal.3d 637 [ 183 Cal.Rptr. 508, 646 P.2d 179], and (2) the Supreme Court retransfered this case to this court with instructions to reconsider in light of the decision in In re Marriage of Flaherty.
Following the teaching of In re Marriage of Flaherty, this court on September 2, 1982, notified the parties that it still considered the previous appeal to be frivolous for the reasons set forth in the prior opinion and requested the parties to respond in writing to the issue of sanctions and to appear for oral argument and hearing on October 19, 1982.
Written briefs were filed by both sides and the matter came on for hearing on the appointed date. Extensive argument was presented by both sides and the matter was then taken under submission.
It is important to note that in responding to our notice of September 2, 1982, and at the hearing in open court appellant was represented by counsel other than the one who perfected the original frivolous appeal.
It is further important to note that a factor contributing to our original conclusion that the entire litigation in this case, including the appeal, was vexatious, frivolous and a sham, was the slipshod and inarticulate nature of the pleadings in the trial court and the brief on appeal.
In response to our notice of September 2, 1982, present counsel filed a brief in which he vigorously and professionally argues the merits of the appeal. He also vigorously and capably reargued the merits of the appeal at the hearing. We commend him on his advocacy.
While it is true that the Supreme Court's granting of a hearing in this case had the effect of vacating our previous opinion in its entirety, requiring us to again treat the merits of the appeal as well as the issue of its frivolous nature and the appropriate sanctions, it is our opinion that we must base our decision on what was presented to us at the time the appeal was initially before us.
We view the actions of the Supreme Court in granting a hearing and the retransfering of the matter to us with directions to reconsider in light of the In re Marriage of Flaherty opinion, as focusing our attention on the procedural steps and due process considerations in imposing sanctions. Hence our starting point in these proceedings is that the prior appeal was totally lacking in merit and frivolous.
Were we to simply treat this as a new appeal in which the merits are reconsidered the result would be that Custom Craft, the appellant, would have "two bites at the apple," simply as a result of our imposition of sanctions in the first appeal.
It seems clear to us that but for our imposition of sanctions in the first appeal, no hearing would have been granted by the Supreme Court and the judgment would have long since been final.
(1a), (2a) For those reasons we now incorporate into this opinion all of our prior opinion except for the last sentence in which we imposed sanctions.
(3) Despite present counsel's valiant effort to persuade us that this litigation including the prior appeal contained the germ of an important and serious legal issue, albeit inarticulately and ineffectually pleaded and briefed, we continue in our firm belief that the entire matter from trial level to the appellate level was a sham designed to gain time for Custom Craft to continue its improper conduct.
All of the matters which present counsel now urges relating to the merits of this litigation, could and should have been raised in the action which was tried and in which the People prevailed.
Other than the contention that Custom Craft "really had something" in this case but failed to present it effectively, we have not been favored with any reason why our originally imposed sanctions should not be reimposed. Our prior opinion fully sets forth our findings and conclusions in that connection.
It is evident that our discussion in this matter has been critical of prior counsel. Without invading the attorney-client privilege, we have no available means of determining whether it was the client or counsel who was responsible for pressing this litigation and imposing on both the trial and appellate courts.
Perhaps the deficiency in the original pleadings and brief indicates that counsel was reluctantly attempting to serve a rapacious client. Perhaps not.
In any event, if the fault lies with counsel the client can obtain relief in another forum. Thus we conclude that the appropriate course of action is to impose the sanctions on the party — Custom Craft — which in the final analysis was the beneficiary of the delay and disruption which this litigation produced.
The judgment is affirmed. In addition to the usual costs on appeal, plaintiffs are ordered to pay to the City of Los Angeles and the State of California the sum of $5,000 each.
On November 26, 1982, the opinion was modified to read as printed above.
APPENDIX NOT FOR PUBLICATION[Civ. No. 60699. Second Dist., Div. Two. Dec. 16, 1981.]
CUSTOM CRAFT CARPETS, INC., et al., Plaintiffs and Appellants, v. LYNN MILLER, as Deputy City Attorney, etc., (Super. Ct. No. C225751) et al., Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert I. Weil, Judge. Affirmed.
Burton Marks for Plaintiffs and Appellants.
Ira Reiner, City Attorney, Thomas C. Bonaventura, Sr., and Pedro B. Echeverria, Assistant City Attorneys, George Deukmejian, Attorney General, and Ronald A. Reiter, Deputy Attorney General, for Defendants and Respondents.
OPINION
COMPTON, J.
Plaintiffs instituted this action by the filing of a multi-count complaint captioned "Damages; Declaratory and Injunctive Relief; and Reasonable Attorneys Fees [ sic]." Originally named as the defendants were the People of the State of California, the then Attorney General, Evelle J. Younger, the then Los Angeles City Attorney, Burt Pines, two named deputy attorneys general, and a named deputy city attorney.
In the course of the pleadings stage, plaintiffs reached the point of filing a second amended complaint after demurrers had been sustained to various counts of the complaint and as to certain of the defendants. Some of the demurrers were sustained without leave to amend.
The action was finally terminated in toto by the entry of a summary judgment in favor of defendants as to those counts of the complaint not previously disposed of. Plaintiffs have appealed. We affirm.
(1b) We have concluded that the entire proceedings, as we will point out, were initiated as a sham in an attempt to frustrate the office of the Attorney General and the city attorney in their efforts to enforce certain consumer protection laws against plaintiffs. The appeal is frivolous.
Although the complaint in this action purports to state several "causes of action" including a violation of the Federal Civil Rights statute ( 42 U.S.C. § 1983), it is replete with conclusionary allegations, epithets and invective, and upon careful examination reveals that, the caption notwithstanding, it amounts to nothing more than an attempt to plead a cause of action for malicious prosecution of a civil action.
Stripped of its conclusionary allegations and epithets, the complaint simply alleges that the deputy attorneys general and the deputy city attorney cooperated together in an inquiry into the plaintiffs' advertising and marketing practices. In the course of said inquiry, plaintiffs were invited to the office of the Attorney General and were advised that the deputies intended to file a civil action against the plaintiffs. Plaintiffs were offered a copy of a proposed civil complaint along with a proposed stipulated judgment which would provide for the payment of $50,000 in civil penalties and an injunction against engaging in certain proscribed practices in the future.
In short, the deputies advised plaintiffs of their intent to institute a civil action and proposed a settlement of the case. Plaintiffs then assert their innocence and allege in conclusionary fashion that deputy attorneys general and deputy city attorney, along with their employers, knew that the charges were false and were proceeding on fabricated evidence.
It is interesting to note that one of the paragraphs in the complaint alleges that "At all times defendants knew that there was no evidence of many of the purported violations." (Emphasis added.) That allegation in itself is pregnant with the admission that there was evidence of some of the violations.
Be that as it may, the novelty, if not the demonstrated frivolous nature of the plaintiffs' action, is that it was filed four days prior to the filing of the action about which it complains and shortly after the settlement discussion.
It is hornbook law that an action for malicious prosecution requires that there be a termination of the prosecution favorable to plaintiff and of course it was impossible under the circumstances for plaintiffs to plead or prove that element. We are unaware of any procedure for preventing the filing of an action by a defendant who claims that the action lacks merit. Nor do we know of any tort consisting of the mere filing of an action or a statement of intent to do so.
We have taken judicial notice of the action entitled People v. Custom Craft et al., Los Angeles Superior Court No. C 226056, the file of which discloses that on September 9, 1981, after a trial on the merits, the Superior Court of Los Angeles County issued a permanent injunction against the plaintiffs, which injunction embraced most, if not all, of the provisions contained in the proposed stipulated judgment.
The frivolous nature of these proceedings is further demonstrated by the fact that on the basis of nothing more than the filing of the instant action, plaintiffs attempted to disqualify the Attorney General and the city attorney from representing the state and the city in the prosecuting of the action against the plaintiffs and from representing themselves and their deputies in this case on the grounds of a conflict of interest — a conflict created only by the plaintiffs' filing of this spurious action.
(2b) This is the very type of action which demonstrates the wisdom of the immunity provided to attorneys exercising their discretion in the course of their employment in representing governmental entities. ( Butz v. Economou (1978) 438 U.S. 478 [57 L.Ed.2d 895, 98 S.Ct. 2894]; Imbler v. Pachtman (1976) 424 U.S. 409 [47 L.Ed.2d 128, 96 S.Ct. 984]; Wilson v. Sharp (1954) 42 Cal.2d 675 [ 268 P.2d 1062]; Gov. Code, §§ 820.2, 821.6.)
Again viewing plaintiffs' complaint in its entirety and ignoring its epithets and semantical "gamesmanship," along with the various declarations filed in connection with the motion for summary judgment, it is evident that the Attorney General, the city attorney, and their deputies, were at all times performing in their respective capacities as attorneys for their respective governmental agencies. They were thus completely immune from any tort liability arising out of their conduct in preparing and initiating a civil action against plaintiffs.
If the ploy attempted by plaintiffs here were permitted to succeed, the entire justice machinery of the state, which is designed to protect the public from the criminals and predators among us, could be rendered impotent.
The vice of the present case is that it has succeeded to the extent that the state has been put to a considerable expense and delay in extricating itself from this piece of "legal flypaper," not to mention the burden that has been placed on the courts.
While we are not able to measure the damage to the legal system or the expense to the state, we can impose sanctions for the taking of this frivolous appeal which hopefully will deter such conduct in the future.
The judgment is affirmed. In addition to the usual costs on appeal, plaintiffs are ordered to pay to the City of Los Angeles and the State of California the sum of $5,000 each.
Not for Publication
Roth, P.J., and Beach, J., concurred.
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