1 Sales Corp. v. Olsen

• Citation: 80 Cal.App.3d 645,145 Cal.Rptr. 778
• Court: California Court of Appeals
• Decision Date: 04 May 1978
• Parties: 117 SALES CORPORATION, etc., Plaintiff and Appellant, v. JoAnn OLSEN, Defendant and Respondent. Civ. 14987.

Page 778

145 Cal.Rptr. 778

80 Cal.App.3d 645

117 SALES CORPORATION, etc., Plaintiff and Appellant, v. JoAnn OLSEN, Defendant and Respondent.

Civ. 14987.

Court of Appeal, Fourth District, Division 1, California.

May 4, 1978.

As Modified May 16, 1978.

Richard I. Singer by Keith L. Meeker, San Diego, for plaintiff and appellant.

Brian D. Monaghan, San Diego, for defendant and respondent.

STANIFORTH, Associate Justice.

JoAnn Olsen filed a small claims action to recover $390.75, the purchase price of a sofabed she bought from appellant 117 Sales Corporation. She charged the sofabed was represented to be a "Riviera" sofabed but it was not; the sofabed had a metal bar so placed as to prevent comfortable rest or sleep by a human body. She found herself, by a cross action process, a codefendant, along with Michael Siegel and Riviera Manufacturing Company (franchisor of 117 Sales Corporation) in a superior court, three-count, twenty-page, $25,000 damage action.

The trial court sustained her general demurrer to the first and second causes of action without leave to amend and granted her motion to strike (treated as a motion for summary judgment) and entered a judgment of dismissal as to Olsen only. ¹ Her small claims action was remanded to the appropriate tribunal. We affirm the order and judgment.

The sole issue on appeal is whether the trial court abused its discretion in granting Olsen's motion for summary judgment and in sustaining her demurrer without leave to amend. 117 Sales Corporation has not appealed the trial court's sustaining of Olsen's general demurrer without leave to amend as to the first cause of action.

We assess the sufficiency of the second cause of action only against the general demurrer by these familiar rules:

". . . we treat the demurrer as admitting all material facts properly pleaded. (Citations.) Further, in reviewing an order sustaining a demurrer without leave to amend, 'the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.' " (King v. Central Bank, 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 772, 558 P.2d 857, 858.)

With respect to the trial court's granting Olsen's motion for summary judgment, these rules control our decision:

"It is . . . elementary that the motion for summary judgment should be denied if the papers submitted show there is a triable issue of fact (citations) and if an issue of fact is present the trial court abuses its discretion in granting such a motion (citations). The function of the trial court is 'issue finding,' not 'issue determination' (citation), and, in reading the papers filed, those of the moving party are to be strictly construed, while those of the opposing party are to be liberally construed." (Black v. Sullivan, 48 Cal.App.3d 557, 567, 122 Cal.Rptr. 119, 126.)

The sole factual gist of 117 Sales Corporation's second cause of action against Olsen is she conspired with her codefendants Siegel and Riviera to institute a nonmeritorious and malicious civil action in the small claims court without probable cause and with knowledge of the invalidity of the claim asserted. 117 Sales Corporation alleges Olsen, together with her codefendants:

"In doing the aforementioned acts (filing a small claims action), defendants, . . . planned, agreed and conspired to interfere with and have interfered with Plaintiff's prospective business advantage by wrongfully casting disrepute on and impairing Plaintiff's business good will and business reputation in the San Diego community."

Thus, the objective of the conspiracy here charged was to interfere with a "prospective business advantage."

A civil conspiracy is simply a corrupt agreement; it is:

". . . a combination of two or more persons to accomplish an evil or unlawful purpose." (Southern Cal. Disinfecting Co. v. Lomkin, 183 Cal.App.2d 431, 448, 7 Cal.Rptr. 43, 54.)

To state a cause of action for civil conspiracy, facts must be alleged which show the formation and operation of a conspiracy, the wrongful act of any of the conspirators thereto and damage resulting therefrom. (Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 488, 110 P.2d 396; Wise v. Southern Pacific Co., 223 Cal.App.2d 50, 64-65, 35 Cal.Rptr. 652.)

The court in Allen v. Powell, 248 Cal.App.2d 502, 508, 56 Cal.Rptr. 715, 720, states:

" 'The gist of an action charging civil conspiracy is not the conspiracy but the damages suffered. (Citations.) It is the long established rule that a conspiracy, in and of itself, however atrocious, does not give rise to a cause of action unless a civil wrong has been committed resulting in damage. (Citations.) . . . The advantage to the pleader in charging a conspiracy is to implicate all participating in the common design and thus fasten liability on him who agreed to the plan to commit the wrong as well as on him who actually carried it out. (Citations.) The conspiracy "may be inferred from the nature of the acts done, the relations of the parties, the interests of the alleged conspirators, and other circumstances. " (Citations.) . . .' " (Emphasis added.)

(See also Freeman v. LaMorte, 148 Cal.App.2d 670, 307 P.2d 734.) Thus the gist of the action is damages. (Orloff v. Metropolitan Trust Co., supra, 17 Cal.2d 484, 488, 110 P.2d 396.) No cause of action exists for the conspiracy itself. The pleaded facts must show something which, without conspiracy, would give rise to a cause of action. (Agnew v. Parks, 172 Cal.App.2d 756, 762-765, 343 P.2d 118.) In fact, if the wrongful act is set out, the conspiracy allegation is unnecessary to the cause of action. (Loeb v. Kimmerle, 215 Cal. 143, 151, 9 P.2d 199.)

The advantage to the pleader in charging a conspiracy is to implicate all participating in the common design and thus fasten liability on him who agreed to the plan to commit the wrong as well as on him who carried it out. (Allen v. Powell, supra, 248 Cal.App.2d 502, 508, 56 Cal.Rptr. 715.) Thus each participant in a wrongful conspiracy is responsible as a joint tortfeasor whether he is a direct actor and irrespective of his degree of activity. (Greenwood v. Mooradian, 137 Cal.App.2d 532, 537-538, 290 P.2d 955.) However, where there is a lack of factual allegations of a conspiracy to accomplish a specified evil or unlawful purpose, the rule of Greenwood has no application. Moreover, if we assume sufficient factual allegations of a combination to commit an unlawful or improper act, the sine qua non for recovery for civil conspiracy is proximately caused damages. (Unruh v. Truck Insurance Exchange, 7 Cal.3d 616, 631, 102 Cal.Rptr. 815, 498 P.2d 1063.) In each of these areas of requisite factual allegations, bare legal conclusions are insufficient. (Diodes, Inc. v. Franzen, 260 Cal.App.2d 244, 245, 252, 67 Cal.Rptr. 19.) Inferences, generalities, presumptions and conclusions are insufficient. (Legg v. Ford, 185 Cal.App.2d 534, 542, 8 Cal.Rptr. 392.)

With these legal premises in mind, we examine the pleadings. The civil wrong there attempted to be alleged was an interference with prospective business advantage. This is an intentional tort creating a right for damages against one who unjustifiably interferes with the advantageous business relationship to another's damages.

The precise question here is whether 117 Sales Corporation has alleged facts from which the elements of a cause of action for unjustifiable interference with a prospective business advantage may be deduced as to Olsen. JoAnn Olsen is charged, in count two, with conspiring to file a "malicious," "nonmeritorious" small claims lawsuit without probable cause. It is asserted Olsen's action was instituted for the ulterior...