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The Bertero Rule

What Is the Bertero Rule?

In Bertero v. National General Corp. (1974) 13 Cal.3d 43, the California Supreme Court addressed the propriety of a jury instruction providing that the defendant "'cannot escape liability for the malicious prosecution of a claim for which he did not have probable cause by joining it with a claim for which he did have probable cause to assert.'" (Id. at p. 55, fn. 4.)

The court held that this was a correct statement of the law.

The court, in part, relied on reasoning from an early case from Missouri: "Confronted with a similar question, the Supreme Court of Missouri reasoned, . . . 'it would seem almost a mockery to hold that, by uniting groundless accusations with those for which probable cause might exist, the defendants could thereby escape liability, because of the injured party's inability to divide his damages between the two with delicate nicety.' " (Id. at p. 56, quoting Boogher v. Bryant (1885) 86 Mo. 42, 50.)

The Bertero court rejected the argument that the proper inquiry was whether the malicious prosecution defendants had a reasonable ground for seeking the ultimate relief they sought in the underlying case, rather than "'whether they had such grounds for asserting each of their three theories.'" (Bertero, at p. 57.)

It held:

"A plaintiff acting in good faith may safely sue on alternative theories after full disclosure to counsel when he or she possesses a reasonable belief in the validity of each of those theories. . . . We see no reason for permitting plaintiffs and cross-complainants to pursue shotgun tactics by proceeding on counts and theories which they knew or should know to be groundless." (Ibid..)

Twenty years later, the California Supreme Court had the opportunity to revisit the Bertero rule in a case in which it was claimed by the malicious prosecution plaintiff that only some of the six grounds alleged by the contestant and her attorneys in an underlying will contest were prosecuted without probable cause. (Crowley v. Katleman (1994) 8 Cal.4th 666, 674-675, 676 (Crowley).)

The court upheld the appellate court's determination that under the Bertero rule, a claim for malicious prosecution had been stated "even though it does not allege that every one of the grounds asserted in the will contest lacked probable cause." (Crowley, at p. 679; see also Citi-Wide, supra, 114 Cal.App.4th 906 Bertero rule applied where there was no probable cause as to most, but not all, of damages sought in underlying action; Mabie v. Hyatt (1998) 61 Cal.App.4th 581 Bertero rule applied where underlying claim alleging fraud, conspiracy, and malice lacked probable cause, even though separate claim for cancellation of note and deed of trust was supported by probable cause.)