Minasian

Plaintiff appeals from order of dismissal entered on motion for judgment on the pleadings. Raised is the question whether the dismissal of a former proceeding for failure to prosecute (Code Civ. Proc., § 583, subd. (a)) constitutes a favorable termination of the proceeding for the purpose of stating a cause of action for malicious prosecution.

In accord with the settled rule, we accept as true all well pleaded material factual allegations in the complaint. (Colberg, Inc. v. State of California ex rel. Dept. Pub. Wks., 67 Cal.2d 408, 411-412 [ 62 Cal.Rptr. 401 , 432 P.2d 3 ].) In July 1971 Minasian instituted a municipal court action against Sapse to recover $300 owed as attorney’s fees. On August 12 Minasian received the answer, counterclaims and cross-complaint filed by Sapse in which it was alleged that Minasian’s process server had acted in such a way that Sapse’s wife, who had recently undergone surgery, was agitated and emotionally shocked so as to cause her to be in a severe state of hypertension as a direct result of which she died. Sapse claimed damages for wrongful death in the amount of $50,000. Minasian was emotionally distressed by these allegations. On…