Chen v. Fleming
Decision Date | 15 September 1983 |
Citation | 147 Cal.App.3d 36,194 Cal.Rptr. 913 |
Court | California Court of Appeals Court of Appeals |
Parties | Stephen C.S. CHEN, Plaintiff and Appellant, v. Fred J. FLEMING, et al., Defendants and Respondents. Civ. 68315. |
Stephen C.S. Chen, in pro. per.
Lewis, D'Amato, Brisbois & Bisgaard, David B. Parker and Sherri Price-Peace, Los Angeles, for defendants and respondents.
Respondent Fred J. Fleming ("Fleming"), an attorney, was retained by certain clients in connection with their immigration status. Before Fleming had completed the task agreed to be undertaken, the clients elected to substitute appellant Stephen C.S. Chen ("Chen"), also an attorney, as their counsel in the matter. Chen first wrote to Fleming in February of 1980 advising him of the change and requesting that a $300 fee deposit be refunded. Having advanced costs and expended time respecting the case, Fleming declined to return the money. Chen, by further letter, then lowered his refund demand to $200 with the additional admonition that:
"Your failure to comply with, or respond to, this demand will compel my client's taking further action to protect her interests, including referring the matter to the proper authorities for review."
Fleming, in response, wrote to the State Bar, reciting in part that:
A copy of this letter was sent to Chen. 1
The State Bar, in turn, requested by letter that Chen respond to Fleming's complaint. That response, after otherwise setting out Chen's version of the controversy, asserted that:
"The said paragraph, [to which Fleming took umbrage] in its entirety, was simply to put FLEMING on notice that shall he ignore the request for refund, CHEN would have no alternative but to take further proper steps to have [the clients'] claim adjudicated."
Apparently satisfied the quarrel between the lawyers was insubstantial, the State Bar terminated its involvement in November of 1980. 2
In August of 1981, on the basis of the foregoing, Chen sued Fleming. His April 19, 1982 second amended complaint for libel, slander, abuse of process, malicious prosecution, intentional infliction of severe emotional distress, and negligence, was like its predecessors, successfully generally demurred to by Fleming and the cause was dismissed. This appeal followed. We affirm.
It is settled concerning Civil Code section 47, subdivision 2 3 that (Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1036, 121 Cal.Rptr. 853; see also Brody v. Montalbano (1978) 87 Cal.App.3d 725, 732-733, 151 Cal.Rptr. 206; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 488-490, 104 Cal.Rptr. 650.)
Similarly, it is established that:
we have no doubt those requirements were satisfied here. (See O'Neil v. Cunningham (1981) 118 Cal.App.3d 466; cf. Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893, 136 Cal.Rptr. 321; see also Rosenthall v. Irell & Manella, supra, 135 Cal.App.3d 121, 127, 185 Cal.Rptr. 92; Portman v. George McDonald Law Corp. (1979) 99 Cal.App.3d 988, 160 Cal.Rptr. 505.)
Still, Chen suggests, it is also the rule that even though "a communication may be absolutely privileged for the purposes of a defamation action [there is nothing to] prevent its being an element of an action for malicious prosecution" (Albertson v. Raboff (1956) 46 Cal.2d 375, 382, 295 P.2d 405), such that, at least, his cause of action framed on that theory must remain intact. The claim is answered, however, by the corollary to that rule that "A mere investigation which does not lead to the initiation of proceedings before an [official body] having the power to take action adversely affecting legally protected interests of the accused is not a sufficient basis upon which to found a malicious prosecution action ..." (Id., at 736, 295 P.2d 405; see also...
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