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Bidna v. Rosen9/30/1993
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
No. G012357
1993.CA.41944 ; 19 Cal. App. 4th 27; 23 Cal. Rptr. 2d 251
Filed: September 30, 1993.
HOWARD M. BIDNA, PLAINTIFF AND APPELLANT,
v.
NANCI ANN ROSEN ET AL., DEFENDANTS AND RESPONDENTS.
Appeal from a judgment of the Superior Court of Orange County. Super. Ct. No. 658597. Hon. Phillip E. Cox, Judge.
Bidna & Keys, Richard D. Keys, Harvey M. Moore and Jon A. Longerbone for Appellant.
Sheppard, Mullin, Richter & Hampton, Randolph B. Godshall, Weinfeld & Mixon, Cameron Jolly, Ezra and Brutzkus and Robert Ezra for Defendants and Respondents.
Sills, P.J.; Wallin, J., Concurring. Crosby, J.; Concurring and Dissenting separately.
Sills
SILLS, P.J.:
I
The trajectory of the case law now governing malicious prosecution claims arising out of family law proceedings arcs toward one destination: a bright line barring any such claims, no matter how egregious the defendant's conduct in the family law action. The present case (at least as pled) is egregious indeed, and forces us to ponder whether the arc should be completed.
After the trial court awarded primary physical custody of a couple's daughter to the husband, the wife's mother told him that she would use her superior financial resources to keep reopening custody issues until husband finally "gave up" custody of the child. Over a period of less than a year the wife (allegedly funded by her mother) brought a series of six totally meritless ex parte applications and OSC's (orders to show cause) to change custody. The husband alleges these proceedings ended up costing him in excess of $200,000.
The issue before us is not an easy one. If we affirm the judgment, we consign the husband to various family law remedies, which conspicuously do not include punitive damages and damages for emotional distress. Moreover, the Napoleon behind the scheme to wear husband down under the barrage of family law litigation -- his erstwhile mother-in-law -- may very well escape liability while his ex-wife is alleged to have effectively rendered herself "judgment proof" from any family law sanction award.
On the other hand, reversal will open the sluice gates to the rivers of bitterness that often typify family law cases. (See Green v. Uccelli (1989) 207 Cal. App. 3d 1112, 1121, 255 Cal. Rptr. 315.) Lawyers are notoriously clever at overstating their cases in their complaints (see Gray v. Zurich Insurance Co. (1966) 65 Cal. 2d 263, 276, 54 Cal. Rptr. 104, 419 P.2d 168); a few failed OSC's in the family law courts will no doubt allow able counsel to construct a complaint that will make their case look almost as bad as this one.
Reversal also means enduring the chill on family law remedies created by the possibility of a civil suit for malicious prosecution. It is the nature of family law that in even the most decently managed case there is often the need for multiple OSC's and motions. Allowing malicious prosecution in the wake of unsuccessful motions may discourage meritorious proceedings, including those brought for the best interests of children.
The crux of the matter boils down to the inadequacy of the husband's family law remedies "balanced" against the "
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