posture defense in California

2025The law favors the resolution of disputes. ‘This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action.’ ” ( Oprian, supra, 220 Cal.App.3d at pp. 344-345.) Similarly, a party’s voluntary dismissal of the underlying action is not on the merits for purposes of a subsequent malicious prosecution action where such dismissal occurs, for example, (1) in an alter ego action that was rendered moot by the reversal of a prior judgment against the corporation (R

2017The law favors the resolution of disputes. 'This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of malicious prosecution action.' " Oprian , 220 Cal.App.3d at 344 -345 , 269 Cal.Rptr. 429 ; Contemporary Services , 152 Cal.App.4th at 1057 , 61 Cal.Rptr.3d 434 .

2025The law favors the resolution of disputes. ‘This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action.’ ” ( Oprian, supra, 220 Cal.App.3d at pp. 344-345.) Similarly, a party’s voluntary dismissal of the underlying action is not on the merits for purposes of a subsequent malicious prosecution action where such dismissal occurs, for example, (1) in an alter ego action that was rendered moot by the reversal of a prior judgment against the corporation (R

2025The law favors the resolution of disputes. ‘This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action.’ ” ( Oprian, supra, 220 Cal.App.3d at pp. 344-345.) Similarly, a party’s voluntary dismissal of the underlying action is not on the merits for purposes of a subsequent malicious prosecution action where such dismissal occurs, for example, (1) in an alter ego action that was rendered moot by the reversal of a prior judgment against the corporation (R

2025The law favors the resolution of disputes. ‘This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action.’ ” ( Oprian, supra, 220 Cal.App.3d at pp. 344-345.) Similarly, a party’s voluntary dismissal of the underlying action is not on the merits for purposes of a subsequent malicious prosecution action where such dismissal occurs, for example, (1) in an alter ego action that was rendered moot by the reversal of a prior judgment against the corporation (R

2025In other instances, the dismissal “ ‘may be an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits.’ ” (Maleti v. Wickers (2022) 82 Cal.App.5th 181 , 205 (Maleti); see Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1400 (Sycamore Ridge) [because parties do not ordinarily voluntarily dismiss meritorious claims, there is a rebuttable presumption that such a dismissal is a favorable termination on the merits].)10 But “ ‘ “[i]t is not enough ... merely to show that the proceeding was dismissed.” [Citation.] The

2017The law favors the resolution of disputes. 'This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of malicious prosecution action.' " Oprian , 220 Cal.App.3d at 344 -345 , 269 Cal.Rptr. 429 ; Contemporary Services , 152 Cal.App.4th at 1057 , 61 Cal.Rptr.3d 434 .

2010This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action. [Citation.] Finally, and in any event, in this state pleadings are required to be liberally construed in favor of the pleader. [Citations.] The factual allegations of the complaint are controlling over the title or label given the pleading and over the prayer or demand for relief. [Citation.] In these respects federal rules of pleading are similar. [Citation.] Together these policies compel t

2010This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action. [Citation.] Finally, and in any event, in this state pleadings are required to be liberally construed in favor of the pleader. [Citations.] The factual allegations of the complaint are controlling over the title or label given the pleading and over the prayer or demand for relief. [Citation.] In these respects federal rules of pleading are similar. [Citation.] Together these policies compel t

2010This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action. [Citation.] Finally, and in any event, in this state pleadings are required to be liberally construed in favor of the pleader. [Citations.] The factual allegations of the complaint are controlling over the title or label given the pleading and over the prayer or demand for relief. [Citation.] In these respects federal rules of pleading are similar. [Citation.] Together these policies compel t

2010(Swat-Fame, supra, 101 Cal.App.4th at p. 625 .) Because such an order does not address the evidence, however, it does not establish the factual tenability of the claim.

1977He cannot wait until the jury has rejected his general claim of self-defense and then be heard to complain about the failure to instruct *229 on a specific posture of the defense which might have detracted from the defense generally. 2 Defendant finally contends as to the assault conviction that the procedures set out in People v. Wingo (1975) 14 Cal.3d 169 [ 121 Cal.Rptr. 97 , 534 P.2d 1001 ] and People v. Romo (1975) 14 Cal.3d 189 [ 121 Cal.Rptr. 111 , 534 P.2d 1015 ] for attacking an indeterminate sentence for a violation of section 245, subdivision (a) are unconstitutional.

1977He cannot wait until the jury has rejected his general claim of self-defense and then be heard to complain about the failure to instruct *229 on a specific posture of the defense which might have detracted from the defense generally. 2 Defendant finally contends as to the assault conviction that the procedures set out in People v. Wingo (1975) 14 Cal.3d 169 [ 121 Cal.Rptr. 97 , 534 P.2d 1001 ] and People v. Romo (1975) 14 Cal.3d 189 [ 121 Cal.Rptr. 111 , 534 P.2d 1015 ] for attacking an indeterminate sentence for a violation of section 245, subdivision (a) are unconstitutional.

1977He cannot wait until the jury has rejected his general claim of self-defense and then be heard to complain about the failure to instruct *229 on a specific posture of the defense which might have detracted from the defense generally. 2 Defendant finally contends as to the assault conviction that the procedures set out in People v. Wingo (1975) 14 Cal.3d 169 [ 121 Cal.Rptr. 97 , 534 P.2d 1001 ] and People v. Romo (1975) 14 Cal.3d 189 [ 121 Cal.Rptr. 111 , 534 P.2d 1015 ] for attacking an indeterminate sentence for a violation of section 245, subdivision (a) are unconstitutional.

1977He cannot wait until the jury has rejected his general claim of self-defense and then be heard to complain about the failure to instruct *229 on a specific posture of the defense which might have detracted from the defense generally. 2 Defendant finally contends as to the assault conviction that the procedures set out in People v. Wingo (1975) 14 Cal.3d 169 [ 121 Cal.Rptr. 97 , 534 P.2d 1001 ] and People v. Romo (1975) 14 Cal.3d 189 [ 121 Cal.Rptr. 111 , 534 P.2d 1015 ] for attacking an indeterminate sentence for a violation of section 245, subdivision (a) are unconstitutional.

1977(Chapman v. California, 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) Any impact of the four questions had been ameliorated by the sustaining of objections to three of them and by the limiting instruction given at appellant’s request. 9 Also, considering the posture of the defense, predicated solely on appellant’s story, no “evidentiary gap” was filled nor was a “live nerve in the defense” touched.

1977(Chapman v. California, 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ].) Any impact of the four questions had been ameliorated by the sustaining of objections to three of them and by the limiting instruction given at appellant’s request. 9 Also, considering the posture of the defense, predicated solely on appellant’s story, no “evidentiary gap” was filled nor was a “live nerve in the defense” touched.

1967Given this posture of the defense, defendant's silence inevitably assumed great significance to the jury. [8] [See fn. 11] In his closing argument, the prosecutor repeatedly exploited this weakness in the defendant's case; on several occasions he came dangerously close to commenting upon the defendant's failure to take the stand, in violation of the rule announced almost a year before the present trial, in Griffin v. California, supra, 380 U.S. 609 . [fn. 11] [9a] One comment by counsel for the prosecution not only came close to the Griffin line but crossed it.

1967Given this posture of the defense, defendant’s silence inevitably assumed great significance to the jury. [See fn. 11] In his closing argument, the prosecutor repeatedly exploited this weakness in the defendant’s ease; on several occasions he came dangerously close to commenting upon the defendant’s failure to take the stand, in violation of the rule announced almost a year before the present trial, in Griffin v. California, supra, 380 U.S. 609 . 11 One comment by counsel for the prosecution not only came close to the Griffin line but crossed it.