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Hirsh v. Truck Insurance Exchange2/20/2002
], [Gursky] has been damaged in an amount in excess of the jurisdiction of this court."
Appellant also cites the following allegations in the FACC to support his position.
"27. [Appellant] breached the terms of oral agreement . . . by seeking to hold [Baral] liable and responsible for failing to discover and disclose numerous defects . . . ."
"29. As a proximate result of the breach of the oral agreement by [appellant], [Baral] has been damaged in an amount in excess of the jurisdiction of this court."
"39. The breach by [appellant] of the aforementioned provisions of the Purchase Contract by seeking to hold [Gursky] responsible and liable for disclosures, corrections and repairs . . . ."
Appellant argues that even though the facts were so poorly pled they could not state a viable cause of action, the cross-complaints pled malicious prosecution type facts and/or were an attempt to disguise a malicious prosecution claim as a contract claim as the cross-complaints sought damages because he had wrongfully sued the cross-complainants and was malicious.
We have read both cross-complaints in their entirety and conclude that even though they contain the word "malicious," for the most part, the allegations are that appellant's misrepresentations constituted "malicious, oppressive, and fraudulent conduct" entitling cross- complainants to an award of punitive damages. Reading those words in context reveals that neither cross-complaint asserted a disguised malicious prosecution cause of action. (See Microtec Research v. Nationwide Mut. Ins. Co. (9th Cir. 1994) 40 F.3d 968, 971.) After all, "Because of this requirement [i.e., of a favorable termination], it is obvious that a defendant cannot cross-complain or counterclaim for malicious prosecution in the first or main action." (Babb v. Superior Court (1971) 3 Cal.3d 841, 846.)
Although appellant discusses other general principles of insurance coverage, such as any uncertainty as to the facts is resolved in favor of the insured and an insurer cannot avoid a duty to defend by relying on a coverage defense related to a critical issue in the underlying suit, he does not discuss how those principles are applicable to his action. There were no disputed facts, only a dispute as to whether or not the allegations constituted a malicious prosecution claim. Respondent did not rely on a coverage defense related to a critical issue to deny coverage.
Accordingly, we conclude summary judgment was properly granted as there was no potential for coverage in that the cross-complaints did not, and could not, assert the element of a favorable termination in favor of cross-complainants. (Cf. Nichols v. Great American Ins. Companies (1985) 169 Cal.App.3d 766, 774-775.)
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
We concur:
JOHNSON, Acting P.J.
PERLUSS, J.
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