Shorr

Introduction

Michael Shorr appeals from an order sustaining a demurrer to his first amended cross-complaint for malicious prosecution. The order was sustained with 10 days leave to amend. Appellant prematurely filed notice of appeal. Subsequent to the filing of the notice of appeal, a judgment of dismissal was entered on the action for plaintiff’s failure to amend his action within 10 days.

Facts and Proceedings Below

We resist the temptation to make the factual statement more complex and detailed than is necessary to identify and form the issues presented in this appeal. The instant action arises out of Shorr’s action for malicious prosecution against Kenneth Kind and Robert Rodriguez. In the malicious prosecution action the trial court, on April 17, 1990, sustained Kind’s demurrer on the ground that the underlying action was not fully terminated. Shorr chose not to amend and appeals.

The underlying action is a cross-complaint filed by Attorney Kind on behalf of his client Rodriguez against Shorr and others. Shorr was not otherwise a party to that action. The cross-complaint fell victim to a motion for summary judgment. Because Rodriguez filed bankruptcy, the…