Can a malicious prosecution action be maintained based on an appeal from the judgment in the prior case?

Thus, the pendency of an appeal from the judgment in the underlying action prevents the maintenance of a malicious prosecution action based on that judgment. However, such cause of action accrues upon entry of the judgment in the trial court and the running of the one-year statute of limitations is not tolled during the time for appeal from the judgment. (Soble v. Kallman, supra, 57 Cal.App.3d 719, 129 Cal.Rptr. 373.) In the case at bench judgment in the prior action was entered August 31, 1979, and notice of appeal from the judgment was filed October 23, 1979. ⁴ Accordingly, the statute of limitations on appellant's malicious prosecution cause of action ran for 53 days, from the date the cause of action accrued upon entry of the judgment to the date of filing of notice of appeal. While the statute thereafter was tolled for 3 years, 6 months and 11 days during pendency of the appeal (Oct. 23, 1979--May 4, 1983), it commenced to run again on the latter date when the appeal process was exhausted with the denial of petition for hearing. Appellant's malicious prosecution action was filed 361 days later, on April 30, 1984. To this 361-day period must be added the 53 days which elapsed between entry of judgment in the underlying action (Aug. 31, 1979) and filing of notice of appeal (Oct. 23, 1979). Inasmuch as the resulting total of 414 days exceeds the applicable one-year statute of limitations, the present malicious prosecution action is barred.