Estate of Falkenborg CA2/5 ( 2022 )

Filed 10/25/22 Estate of Falkenborg CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ESTATE OF MARIE FALKENBORG,
Deceased B305925
LYNN FALKENBORG (Los Angeles County
WINTERROWD, Executor, Super. Ct. No.
17STPB08636)
Plaintiff and Appellant,
v.
DONALD DALE FALKENBORG,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Deborah L. Christian, Judge. Reversed
and remanded with directions.
Shaw Koepke & Satter and Jens B. Koepke for Plaintiff and
Appellant.
Snow Law Corp. and Stephen L. Snow for Defendant and
Respondent.
Lynn Falkenborg Winterrowd (Lynn), the executor of her
mother’s will, petitioned to recover litigation costs that the estate
incurred when defending against her brother Donald
Falkenborg’s (Donald’s) objections to her appointment, first as
special administrator of the estate and then as executor of the
estate. In that same petition, Lynn also sought to recover
compensatory and punitive damages for the estate from Donald
for malicious prosecution of the objection to her appointment as
executor. The probate court granted judgment on the pleadings
for Donald. We are asked to decide whether Lynn had standing
to petition for recovery of costs (even though letters testamentary
had not issued when the petition was filed) and whether she
alleged facts sufficient to assert a claim for malicious prosecution.
I. BACKGROUND
In 1992, Lynn and Donald’s parents, Marie (Marie) and
Donald (Donald, Sr.) Falkenborg, created a family trust and
named themselves trustees; Lynn was named as a successor
trustee.1 The most significant asset in the trust was Marie and
Donald, Sr.’s interest in a business they began and built, Borg
Equipment & Supply, Inc. Under the terms of the trust, Marie
and Donald, Sr.’s children would receive equal shares of the trust
estate following their parents’ deaths.
Donald, Sr. died in 2004 and Marie died in 2017. Prior to
Donald, Sr.’s death, Marie executed a pour-over will which left all
her property to the trust. In her will, Marie named Lynn as “first
1
Lynn was named as co-successor trustee with her brother
William, who died in 2016. The trust did not name Donald as a
successor trustee or as an alternate successor trustee.
2
alternative Executor” in the event Donald, Sr. predeceased her.2
The will contains a “no contest” provision that provides anyone
who, either “directly or indirectly,” contests the probate of the
will would receive one dollar rather than his or her otherwise
bequeathed share or interest in her estate. Marie also appointed
Lynn as her health care agent with durable power of attorney for
health care decisions.
A. Donald’s Objections to Lynn’s Appointment as Special
Administrator and Executor
Following Marie’s death, Lynn petitioned for probate of her
mother’s will and, at the same time, sought via ex parte
application an expedited hearing to obtain temporary letters of
special administration with general powers to defend the estate
from claims brought by the wife of one of Lynn and Donald’s
deceased brothers who maintained she was entitled to a
controlling interest in the family business.3 Lynn’s petition for
probate did not advance any reasons for why she should be
appointed executor beyond the designation in Marie’s will.
Although Donald consented to Lynn’s appointment as a
special administrator with limited authority to represent the
estate against the claims of their former sister-in-law, he objected
to Lynn’s request to be granted general powers over the estate.
2
In the event Lynn predeceased Marie, the will named
Lynn’s brother William as a “second alternative Executor.” The
will did not name Donald as a third alternative executor.
3
Several months after her appointment as executor became
effective, Lynn settled the dispute with her former sister-in-law
for $465,000.
3
In Donald’s view, there were no exigent circumstances requiring
the issuance of general powers at an early stage of the probate
proceedings. In addition, on information and belief, Donald
alleged that prior to their mother Marie’s death, and while she
was suffering from dementia, Lynn had engaged in various forms
of “substantial misconduct” and may have exercised undue
influence over Marie.4 Donald requested Lynn’s authority as
special administrator be “strictly limited” to defending the claims
brought by their former sister-in-law.
Lynn responded to Donald’s objections. She argued her
power as special administrator should not be limited to defending
against the claims of her former sister-in-law; rather, she should
be granted the authority to commence, maintain, or defend
against any lawsuit or other legal proceeding.
The probate court granted Lynn’s ex parte application for
an expedited hearing on her petition to be named special
administrator. At the hearing, the court implicitly overruled
Donald’s objections by appointing Lynn as the estate’s temporary
special administrator with “full authority” under the Independent
4
Among other things, Donald alleged Lynn manipulated
Marie into naming Lynn president of the family business,
attempted to manipulate Marie into giving Lynn valuable assets
belonging to the family business, tried to manipulate the
testamentary distribution of Marie’s assets, and used Marie’s
money to pay some of Lynn’s personal expenses. Donald also
alleged Lynn’s “deep hostility” toward him and the estate’s other
beneficiaries would prevent the proper administration of the
estate.
4
Administration of Estates Act (Prob. Code,5 § 10400 et seq.) to
both commence and defend actions for the benefit of the estate,
including but not limited to the claims brought by the former
sister-in-law. The court, however, did “not grant any authority to
marshal assets without further Court approval.” Lynn’s tenure
as special administrator was set to expire on March 19, 2018.
In addition to contesting the scope of Lynn’s appointment
as special administrator of the estate, Donald also opposed—at
least initially—Lynn’s petition for probate requesting the court
appoint her executor of the estate. Among other things, Donald
argued Lynn exercised undue influence over their mother and
succeeded in getting Marie to amend the revocable portion of the
family trust so as to give all of the assets in that portion to Lynn.6
Donald maintained Lynn “aggressively” prevented him from
learning about her financial dealings with Marie and alleged,
once more, Lynn possessed a “deep hostility” toward him and the
other beneficiaries. In addition, Donald averred Lynn “may have
physically abused” Marie and, through neglect, may have
contributed to Marie’s death. Donald advised the probate court
he intended to file a competing petition (though he never
ultimately did) that would request the court appoint him or a
neutral third party to administer the estate.
In response, Lynn served Donald with written discovery
requests seeking the factual basis for his objection to her
5
Undesignated statutory references that follow are to the
Probate Code.
6
Donald conceded Lynn’s alleged misconduct with regard to
the family trust, which purportedly occurred in 2016, did “not
affect the validity of [Marie’s] will (which was executed in 2002).”
5
appointment as executor. Donald objected to the discovery
requests, asserted various privileges, and refused to provide any
documents or identify any facts supporting his objections to her
appointment. Lynn then moved to compel further responses. At
that point, before the discovery dispute was heard and decided,
Donald withdrew his opposition to Lynn’s appointment. In the
papers withdrawing his opposition, Donald did not explain why
he was withdrawing his opposition.
On March 19, 2018, six days after Donald withdrew his
opposition to Lynn’s appointment and on the day Lynn’s powers
as special administrator were set to expire, the probate court
granted the petition to probate Marie’s will and issued an order
appointing Lynn as executor of Marie’s estate with full authority.
The Judicial Council form order appointing Lynn as executor
warned in capital letters and bold font that Lynn’s appointment
was “not effective” until letters testamentary had been issued.
Lynn, however, did not obtain letters testamentary until April
2019—more than a year after her appointment as executor.
B. Lynn’s Petition for Costs and the Malicious
Prosecution Claim
A month after being appointed executor, Lynn, expressly
proceeding both as Marie’s daughter and the executor of her will,
petitioned the probate court for an order compelling Donald to
pay legal fees and costs the estate incurred in defending against
his objections to Lynn’s appointment as special administrator and
as executor.7 Lynn contended that Donald’s objections were a
7
The petition was brought pursuant to section 1002, which
provides a court with the discretion to order costs to be paid by a
6
direct contest to a protected instrument and lacked supporting
evidence or probable cause. She maintained it would be “unjust”
if all of the estate’s distributees had to pay for the expense of
defending against Donald’s objections.
In November 2018, still five months before she obtained
letters testamentary, Lynn filed an amended petition. As with
her original petition, Lynn indicated she was proceeding in her
capacity as both daughter and executor and she sought to recover
the costs spent by the estate in defending against Donald’s
objections to her appointments as special administrator and
executor. The amended petition added a claim for malicious
prosecution, seeking both compensatory and punitive damages
for Donald’s objection to Lynn’s appointment as executor.8
In support of the malicious prosecution claim, Lynn alleged
Donald’s objection to her appointment as executor was resolved
in her favor when Donald voluntarily withdrew the objection.
Lynn further alleged Donald lacked probable cause for his
objection to her appointment and, in that vein, highlighted (a)
that she, not Donald, was named as executor, successor trustee,
and health care agent for Marie and (b) that Donald’s responses
party to probate proceedings as justice may require. (See
generally Estate of Denman (1979) 94 Cal.App.3d 289, 291-292
[probate court has discretion to determine whether claimant or
estate will bear expense of a will contest].)
8
The amended petition also included a claim for intentional
interference with prospective economic relations, which was pled
as an alternative to the malicious prosecution claim. The
intentional interference claim was resolved in Donald’s favor and
Lynn does not challenge that ruling on appeal. We accordingly
do not discuss it further.
7
to her discovery requests were devoid of facts.9 In attempting to
allege the element of malice that must be shown to prove a
malicious prosecution claim, Lynn averred Donald’s lack of
probable cause, when joined with unsupported allegations that
Lynn physically abused Marie and indirectly caused her death,
sufficed to show malice.
In a supplement to the amended petition, Lynn estimated
Donald’s objections had required the estate to pay $116,200 in
attorney fees and $7,800 in costs.
C. Donald’s Motion for Judgment on the Pleadings
Donald moved for judgment on the pleadings.10 He argued
Lynn lacked standing as executor to bring the amended petition
because her appointment was not yet effective when the amended
petition was filed (no letters testamentary had issued by that
time). Donald also argued Lynn lacked standing to sue in her
individual capacity as Marie’s daughter because she could not act
for the benefit of the estate as an individual. Donald further
argued the malicious prosecution claim against him was legally
9
Lynn also alleged that, prior to Marie’s death, Donald
actively worked against Marie’s wishes and interests by, among
other things, seeking to be named as her conservator and
broadcasting “untruths” about Marie and her personal affairs in
his conservatorship petition.
10
Initially, Donald moved to strike the amended petition.
The probate court denied that motion because it was “untimely”
and “fail[ed] to demonstrate the falsity of the amended pleading.”
Following the denial of his motion to strike, Donald responded to
the amended petition by denying the allegations and asserting
various affirmative defenses.
8
infirm because Lynn was “not a ‘defendant’ in the probate
litigation” and “was not sued in her personal capacity.”
Lynn opposed the motion for judgment on the pleadings.
Under the broad definition of “interested person” found in section
48,11 Lynn argued she had standing, both as Marie’s executor and
as her daughter, to seek reimbursement of litigation costs
incurred defending against Donald’s objections.12 As for the
particulars of the malicious prosecution claim, Lynn maintained
it stated a proper cause of action because Donald’s failed
objection to her appointment as executor constituted a “prior
action” which was terminated in her favor.
Donald’s motion for judgment on the pleadings was initially
heard by a commissioner that was temporarily assigned to hear
the matter while the trial judge was absent. The commissioner
found the issues presented by the motion were “a little more
complex” than represented in the parties’ moving and opposing
papers and wondered whether Lynn’s malicious prosecution
claim was “tenable” when Donald had only objected to Lynn’s
appointment and did not seek any affirmative relief. The parties
11
Section 48 defines an “interested person” to include any of
the following: “(1) An heir, devisee, child, spouse, creditor,
beneficiary, and any other person having a property right in or
claim against a trust estate or the estate of a decedent which may
be affected by the proceeding. [¶] (2) Any person having priority
for appointment as personal representative. [¶] (3) A fiduciary
representing an interested person.” (§ 48, subd. (a).)
12
Lynn alternatively argued the probate court should
disregard her delay in securing letters testamentary pursuant to
section 475 of the Code of Civil Procedure, which requires courts
to disregard errors that do not affect parties’ substantive rights.
9
agreed to submit supplemental briefing addressing the issues
raised by the commissioner.
Donald’s supplemental brief argued his objection to Lynn’s
appointment was not a “prior action” as required to make out a
malicious prosecution claim. Donald asserted his objection was
“defensive” in nature because he merely exercised his legal right,
as an interested party, to question Lynn’s request for
appointment and called on her to prove to the satisfaction of the
probate court she had not disqualified herself for appointment.
Donald further emphasized he had sought no affirmative relief
for his own benefit and did not act “offensively,” for instance, by
filing a competing petition for appointment or a separate action
contesting the validity of Marie’s will. Lynn argued Donald’s
objection, no matter whether it was properly characterized as
offensive or defensive, interjected new factual and legal issues
into the probate process and, in so doing, created an adversarial
action that was resolved in her favor—which, in her view, meant
Donald’s objection to Lynn’s request for appointment as executor
was a “prior action.”
At the hearing on the motion for judgment on the
pleadings, with the assigned trial judge again presiding, the court
entertained oral argument and took the matter under
submission. Later (after Lynn’s appointment as executor had
become effective), the court issued an order granting the motion
for judgment on the pleadings on several independently sufficient
grounds and vacating Lynn’s amended petition.
The probate court found Lynn did not have standing to file
the amended petition because no letters testamentary had issued
at the time of the filing, which the court saw as a jurisdictional
defect that was “not cured by [her] subsequent effective
10
appointment.” (The probate court did not discuss whether Lynn
had standing to seek reimbursement of litigation costs in any
capacity other than as executor.) With regard specifically to the
malicious prosecution claim, the court found it defective. The
court reasoned Donald’s objection to Lynn’s appointment as
executor was not a “prior action” that could support malicious
prosecution liability. The court further found, in any event, that
Lynn did not sufficiently allege Donald’s objection was raised
without probable cause and with malice. In the probate court’s
view, a contrary finding that a malicious prosecution claim would
lie on the facts before it “would encourage every probate
appointment that meets with resistance to litigate new petitions
for malicious prosecution,” which was “not appropriate in probate
and family matters.”
II. DISCUSSION
“‘A motion for judgment on the pleadings, like a general
demurrer, tests the allegations of the complaint . . . ,
supplemented by any matter of which the trial court takes
judicial notice, to determine whether plaintiff . . . has stated a
cause of action. [Citation.] Because the trial court’s
determination is made as a matter of law, we review the ruling
de novo, assuming the truth of all material facts properly pled.’
[Citation.]” (Angelucci v. Century Supper Club (2007) 41 Cal.4th
160, 166, first, second, and fourth alterations added; see also
People for Ethical Operation of Prosecutors etc. v. Spitzer (2020)
53 Cal.App.5th 391, 409 [rulings predicated on standing to sue
are also reviewed de novo].)
Donald was not entitled to judgment on the pleadings as to
the entirety of Lynn’s amended petition because Lynn has
11
standing to seek reimbursement of costs as an “interested person”
under the Probate Code. But Donald is right that her malicious
prosecution claim is not viable because Donald’s objection to
Lynn’s appointment as executor does not qualify as a prior
“action” that can support malicious prosecution liability. Indeed,
as the probate court observed, permitting malicious prosecution
claims to proceed in scenarios like these (as opposed to a full-
blown will contest that functions much like a civil cross-
complaint) would produce an untoward result: opening all
manner of ordinary probate litigation to claims for compensatory
and punitive damages, and making an often contentious area of
the law even worse on that score.
A. Lynn Alleged Sufficient Facts to Establish Her
Standing as Marie’s Daughter and Prospective
Personal Representative
The Probate Code allows an executor to “commence and
maintain actions and proceedings for the benefit of the estate.”
(§ 9820, subd (a).) However, “[a] person has no power to
administer the estate until the person is appointed personal
representative and the appointment becomes effective.
Appointment of a personal representative becomes effective when
the person appointed is issued letters [testamentary].” (§ 8400,
subd. (a).)
Although the probate court appointed Lynn as executor of
Marie’s estate, her appointment was not effective at the time she
filed the amended petition because she had not yet obtained the
letters testamentary effectuating her appointment.
Consequently, the question before us is whether the amended
petition alleges facts that, taken as true, suffice to demonstrate
12
Lynn had standing to file the amended petition on some basis
other than as executor.
Standing under the Probate Code depends on whether the
petitioning party is an “interested person.” (§§ 850, subd.
(a)(2)(C) [allowing an “interested person” to file a petition
requesting the probate court to make an order where, among
other, things, “the decedent died in possession of, or holding title
to, real or personal property, and the property or some interest
therein is claimed to belong to another”], 8500, subd. (a) [“Any
interested person may petition for removal of the personal
representative from office”] & 9613, subd. (a) [allowing “any
interested person” to petition the probate court to “direct the
personal representative to act or not to act concerning the
estate”].) The intent of the “interested person” requirement is to
“prevent[ ] persons with no interest from delaying the settlement
of estate affairs.” (Estate of Maniscalco (1992) 9 Cal.App.4th 520,
523 (Maniscalco).)
To review, section 48 defines “interested person” to include
“[a]ny person having priority for appointment as personal
representative,” as well as a “devisee, child, . . . beneficiary, and
any other person having a property right in or claim against a
trust estate or the estate of a decedent which may be affected by
the proceeding.” (§ 48, subds. (a)(1) & (2); see also §§ 24, subd. (c)
[defining “beneficiary” as it relates to a trust as “a person who
has any present or future interest, vested or contingent”], 26
[defining “child” as “any individual entitled to take as a child
under this code by intestate succession from the parent whose
relationship is involved”], 34, subd. (a) [defining “devisee” as “any
person designated in a will to receive a devise”] & 58, subd. (a)
[defining “personal representative” as, among other things, a
13
will’s executor].) Section 48 also provides “[t]he meaning of
‘interested person’ as it relates to particular persons may vary
from time to time and shall be determined according to the
particular purposes of, and matter involved in, any proceeding.”
(§ 48, subd. (b).) Subdivision (b) of section 48, in other words,
“allows the court to determine the sufficiency of that party’s
interest for the purpose of each proceeding conducted. Thus, a
party may qualify as an interested person entitled to participate
for purposes of one proceeding but not for another. [Citation.]”
(Estate of Prindle (2009) 173 Cal.App.4th 119, 126 (Prindle).)
Courts have construed the “interested person” requirement
broadly. (See, e.g., Prindle, supra, 173 Cal.App.4th at 126-127
[insurer had standing as interested person]; Maniscalco, supra, 9
Cal.App.4th at 524-525; Estate of Davis (1990) 219 Cal.App.3d
663, 668-669 [probate administrator’s surety qualified as
interested person].) Here, however, there is no need for broad
construction: Lynn easily qualifies as an interested person under
the statute’s express terms. The amended petition (considered
with its supporting exhibits) alleges Lynn is Marie’s daughter, a
devisee under her will, and a beneficiary under the family trust,
of which she was the successor trustee. (§ 48, subd. (a)(1).)
Moreover, as the only living person named in Marie’s will as a
possible executor, Lynn had priority to be appointed as the
estate’s personal representative (§ 48, subd. (a)(2)), a fact that the
probate court formally recognized when it appointed her
executor. As Marie’s daughter, heir, and beneficiary, as well as a
prospective personal representative, Lynn had an interest in
seeing the estate’s assets were not diminished by unmeritorious
litigation. That means she had standing to seek, on behalf of the
14
estate, compensation under section 1002 for the cost of defending
against Donald’s objections.
Donald’s only real counterargument is the contention that
Lynn is foreclosed from relying on her individual status as an
interested person to challenge the probate court’s ruling because
the form notice of appeal she filed to contest that ruling indicates
she appealed the judgment in her capacity as executor only. The
law, however, requires us to “liberally” construe notices of appeal
(Cal. Rules of Court, rule 8.100(a)(2); K.J. v. Los Angeles Unified
School Dist. (2020) 8 Cal.5th 875, 882 (K.J.)), and the omission of
an appealing party from a notice of appeal is not dispositive (K.J.,
supra, at 878, 889-890, [construing notice of appeal to include
attorney where indicia besides the notice indicated attorney was
the party seeking review].)
So construing Lynn’s notice of appeal, the notice is
consistent with her claim (reflected in the content of her opening
brief and her earlier motion to augment the record) to have
appealed in both capacities, i.e., as executor and as an interested
individual (Marie’s daughter). The judgment, prepared by
Donald’s counsel, stated the probate court found against Lynn,
“individually and as Executrix” of Marie’s estate, and Lynn took
an appeal from that judgment without qualification. To be sure,
in the portion of the form notice that calls for inserting the name
of the appealing party, counsel inserted “Lynn F. Win[t]errowd,
Executrix of the Estate of Marie Falkenborg,” but we do not read
the specification of her status as executor to exclude her
prerogative to challenge the judgment on the individual grounds
on which it was also expressly entered—the two are not
inconsistent.
15
B. Lynn Has Not Alleged Facts Sufficient to Maintain a
Malicious Prosecution Claim Because Donald’s
Objection to Her Appointment Does Not Qualify as
Prosecution of an Action
The tort of malicious prosecution protects a person’s
“‘interest in freedom from unjustifiable and unreasonable
litigation’ [citation] . . . .” (Sheldon Appel Co. v. Albert & Oliker
(1989) 47 Cal.3d 863, 882 (Sheldon Appel), italics omitted.) “The
tort [of malicious prosecution] consists of three elements. The
underlying action must have been: (i) initiated or maintained by,
or at the direction of, the defendant, and pursued to a legal
termination in favor of the malicious prosecution plaintiff; (ii)
initiated or maintained without probable cause; and (iii) initiated
or maintained with malice. [Citations.]” (Parrish v. Latham &
Watkins (2017) 3 Cal.5th 767, 775–776 & fn. 1; accord, LA
Investments, LLC v. Spix (2022) 75 Cal.App.5th 1044, 1054-1055.)
Because malicious prosecution actions have “the potential to
impose an undue ‘chilling effect’ on the ordinary citizen’s
willingness to report criminal conduct or to bring a civil dispute
to court, . . . the tort has traditionally been regarded as a
disfavored cause of action” and “the elements of the tort have
historically been carefully circumscribed so that litigants with
potentially valid claims will not be deterred from bringing their
claims to court by the prospect of a subsequent malicious
prosecution claim.” (Sheldon Appel, supra, at 872.)
Relying principally on what she forthrightly acknowledges
is dicta in our Supreme Court’s decision in Crowley v. Katleman
(1994) 8 Cal.4th 666, 676-679 (Crowley), Lynn argues Donald’s
objection to her appointment is tantamount to a will contest and
is therefore an appropriate predicate for a malicious prosecution
16
claim. We believe that stretches the Crowley dicta beyond its
narrow confines and would sweep up a large swath of ordinary,
non-affirmative litigation in the probate courts.
Crowley concerned a will contest brought by a defendant
after the plaintiff petitioned to probate the will of the defendant’s
deceased husband. (Crowley, supra, 8 Cal.4th at 673.) The issue
decided in that case concerned whether the will contest was
brought without probable cause. (Id. at 676.) In the course of
resolving that issue, the Crowley court also addressed several
arguments the defendants raised for departing from prior
precedent, including an objection that the tort of malicious
prosecution is a “‘particularly inappropriate’” remedy for will
contests because “such a contest does not seek affirmative relief
from the proponent of the will—e.g., money damages—but simply
seeks to prevent the will from being admitted to probate.” (Id. at
691.) The plaintiff “dispute[d] this characterization of a will
contest, stressing that the pleading that initiates it, however
denominated, is in the form of a civil complaint, that a summons
issues on that complaint, directing the proponent of the will to
file a responsive pleading [citation], and that the latter may then
answer or demur [citation].” (Ibid.)
Our Supreme Court rejected the defense argument and
observed that a will contest involves “two separate and distinct
proceedings,” namely, a petition for probate of the will and the
contest of the probate of the will. (Id. at 691-692.) The Court
then remarked, in language that Lynn seizes on here, that
“whether or not an abusive will contest is technically a separate
and distinct action for some purposes, its effect is nevertheless to
infringe on the interest of the will’s proponent in freedom from
unjustifiable and unreasonable litigation. For purposes of the
17
law of malicious prosecution, therefore, the contest satisfies the
requirement of a ‘prior action . . . commenced by or at the
direction of the defendant . . . .’ [Citation].” (Id. at 692.)
The Crowley dicta does not support the availability of a
malicious prosecution remedy in this scenario, where there is
only an objection to a request for appointment, not a full-blown
will contest that functions much like a civil cross-complaint.
Instead, the objection at issue here is far more limited and a
rather ordinary instance of resistance that is contemplated by an
adversarial legal system. As such, it cannot support malicious
prosecution liability. (See, e.g., Merlet v. Rizzo (1998) 64
Cal.App.4th 53, 59 [distinguishing Crowley and explaining courts
have held “purely defensive actions cannot be the basis for
malicious prosecution claims”].) The probate court will therefore
be required, in light of our resolution of the standing issue, to
consider on the merits the issue of whether Donald should
reimburse the estate for costs under section 1002, but the type of
transient opposition found in Donald’s objection to Lynn’s
appointment as executor is not prosecution of an action that can
or should give rise to tort liability for compensatory and punitive
damages.13 (See Adams v. Superior Court (1992) 2 Cal.App.4th
521, 528 [“The reason the courts have held that a malicious
13
Because we hold Donald’s objection to Lynn’s appointment
is not an action that can support malicious prosecution liability,
we have no need to discuss the probate court’s alternative rulings
that Lynn insufficiently alleged the lack of probable cause and
malice elements of a malicious prosecution claim. And we need
not discuss whether any defect in the malicious prosecution claim
could be cured by amendment because Lynn has not argued the
point.
18
prosecution action cannot be grounded upon actions taken within
pending litigation is that permitting such a cause of action would
disrupt the ongoing lawsuit by injecting tort claims against the
parties’ lawyers and because the appropriate remedy for actions
taken within a lawsuit lies in the invocation of the court’s broad
powers to control judicial proceedings”].)
19
DISPOSITION
The judgment is reversed. The cause is remanded for entry
of an order granting judgment on the pleadings solely as to
Lynn’s claim for malicious prosecution, and for further
proceedings not inconsistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
20