Coy v. Advance Automatic Sales Co.

• Decision Date: 02 July 1964
• Citation: 228 Cal.App.2d 313,39 Cal.Rptr. 476
• Court: California Court of Appeals Court of Appeals
• Parties: Joe COY, Plaintiff and Appellant, v. ADVANCE AUTOMATIC SALES CO., a corporation, Lou Wolcher and Harrison Terry, Defendants and Respondents. Civ. 21569.

Page 476

39 Cal.Rptr. 476

228 Cal.App.2d 313

Joe COY, Plaintiff and Appellant, v. ADVANCE AUTOMATIC SALES CO., a corporation, Lou Wolcher and Harrison Terry, Defendants and Respondents.

Civ. 21569.

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

July 2, 1964.

Rehearing Denied July 14, 1964.

Hearing Denied Aug. 27, 1964.

Fred F. Cooper, Oakland, for appellant.

Marcel E. Cerf, Robinson & Leland, San Francisco, for respondents.

BRAY, Presiding Justice.

Plaintiff appeals from order granting new trial after judgment on jury verdict in favor of plaintiff. ¹

QUESTIONS PRESENTED.

A. Propriety of granting new trial to defendant Terry against whom judgment for punitive damages, but none for compensatory damages, was rendered.

B. Propriety of granting new trial as to the other defendants. Was a cause of action for abuse of process proved?

RECORD.

Plaintiff Joe Coy brought this action for abuse of process against defendants Advance Automatic Sales Co., Lou Wolcher and Harrison Terry. ² The jury rendered a verdict in favor of plaintiff and against defendant Terry in the sum of $1,000 'as and for punitive damages' (nothing for compensatory damages) and against the other defendants in the sum of $10,000 compensatory damages and $10,000 punitive damages. Judgment was entered thereon. Defendants moved for judgment notwithstanding the verdict. ³ Defendants' motion for new trial was grated on 'the grounds of insufficiency of the evidence to sustain the verdict, and error in law, occurring at the trial * * *.'

A. NEW TRIAL PROPERLY GRANTED DEFENDANT TERRY.

No judgment could have been entered on the award to plaintiff of punitive damages against defendant Terry without any award of compensatory damages. Therefore, the action of the trial court in granting defendant Terry a new trial was proper. In Mother Cobb's Chicken T., Inc. v. Fox (1937) 10 Cal.2d 203, 205, 73 P.2d 1185, 1186, the court set forth the reasoning with respect to a finding of punitive damages where there was no finding of actual damages. 'This is an express finding that plaintiff has not suffered any actual damages. In view of this finding, the court was without right to award exemplary damages. The rule is stated in Gilham v. Devereaux, 67 Mont. 75, [214 P. 606, 33 A.L.R. 381], with annotation at page 384, as follows: 'The foundation for the recovery of punitive or exemplary damages rests upon the fact that substantial damages have been sustained by the plaintiff. Punitive damages are not given as a matter of right, nor can they be made the basis of recovery independent of a showing which would entitle the plaintiff to an award of actual damages. Actual damages must be found as a predicate for exemplary damages. This is the rule announced in many authorities.' * * *' (See also Contractor's etc. Ass'n. v. Cal. Comp. Ins. Co. (1957) 48 Cal.2d 71, 77, 307 P.2d 626; Lundquist v. Marine Engineers Beneficial Ass'n. (1962) 208 Cal.App.2d 390, 396, 25 Cal.Rptr. 250.) Plaintiff cites Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 231 P.2d 816, for his contention that the failure to award compensatory damages against an employee does not avoid a verdict for punitive damages. The case does not so hold. The only question presented to the court was whether, in a personal injury action against a master and servant, the failure of the jury to return a verdict as to the servant while rendering one against the master based on respondeat superior relieved the master of liability. The court held that it did not.

B. NEW TRIAL PROPERLY GRANTED THE OTHER DEFENDANTS.

The complaint alleges that plaintiff for more than two years had operated an amusement machine business in Contra Costra County placing certain juke boxes, pool machines, bowling machines and other amusement machines in certain places in the county under exclusive contracts with the owners thereof. These contracts are valuable rights and essential to plaintiff's business which cannot be operated without them. Defendants Advance Automatic Sales Co., Inc., Lou Wolcher and Harrison Terry are competitors of plaintiff in the amusement machine business in the Bay Area. ⁴ On November 10, 1960, plaintiff was indebted to defendant under an account stated in the sum of $1,070.49, which was the only amount owed by plaintiff to defendant. On and prior to that day and again on November 15, 1960, defendant and defendant Terry conspired 'together in an effort and conspiracy to deprive plaintiff of nine of his exclusive locations for said amusement machines, in an effort to obtain said locations' for defendant's business. In furtherance of the conspiracy defendant filed an action in Contra Costa County Superior Court for a total sum of $3,834.81 at a time when defendant knew that $1,070.49 was the only sum owed by plaintiff. Defendant obtained a writ of attachment in the sum of $3,834.81 and directed the Marshal of the Richmond Municipal Court to attach 18 of plaintiff's amusement machines in nine of said places in Contra Costa County. The attachment was levied by said marshal on November 15, 1960. Defendant arranged to accompany said marshal with his own machines 'and attempted to and did arrange to place their own amusement machines in the place and stead of the machines of plaintiff,' thereby taking said exclusive locations from plaintiff for the use and benefit of defendant. The 18 machines 'picked up' by said marshal under said writ of attachment were of a value in excess of $10,000.

Plaintiff sought return of $2,764.32 excessive sum paid defendant, general and special damages in the sum of $22,400, and punitive damages of $15,000 from each defendant.

Plaintiff's claimed abuse of process is based upon the allegations that with the motive of obtaining the locations of plaintiff's machines and substituting his own, defendant filed an action and obtained a writ of attachment for an excessive sum, had the marshal levy upon and remove plaintiff's machines valued far in excess of the amount due or even the amount for which the writ of attachment was issued.

Without detailing the evidence, it may be said that there was evidence from which the jury could find that defendant desired to have plaintiff's machines attached and removed so that defendant could solicit plaintiff's business locations for his own machines. (Although defendant denied that this was the intention, the jury evidently so found.) As to the amount of the indebtedness due defendant from plaintiff the evidence shows at least that the correct amount was in dispute between the parties. Defendant's books showed the larger indebtedness. Plaintiff denied owing that amount although he was not clear as to exactly how much he did owe. Defendant told plaintiff, in effect, that the attachment would not be released unless plaintiff paid the amount claimed by defendant. The issue whether the amount claimed by the defendant was greater than the amount due and owing was taken from the jury by the court, it being of the opinion that that issue was relevant only in an action for malicious prosecution.

While the complaint alleged that the levy was on machines of values greatly in excess of the amount sued for, no evidence was introduced to support this allegation. Moreover, plaintiff is not now urging this contention. At oral argument counsel for plaintiff stated that he was basing his contention that there was an abuse of process solely upon the fact that defendant's agent accompanied the marshal with the intent of soliciting the plaintiff's business locations as the machines were removed.

The complaint did not state a cause of action for abuse of process nor did the evidence, viewing it most favorably towards plaintiff, prove such a cause of action. In Kyne v. Eustice (1963) 215 Cal.App.2d 627, 30 Cal.Rptr. 391, this court set forth the requisites of a cause of action for abuse of process. There, we said: "One who uses legal process, whether criminal or civil, against another to accomplish a purpose for which it is not designed is liable to the other for the pecuniary loss caused thereby.' (3 Rest., Torts, § 682, p. 464; Spellens v. Spellens, 49 Cal.2d 210, 231, ; Tranchina v. Arcinas, 78 Cal.App.2d 522, 525, .) The gist of the tort is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish; and its essential elements are: (1) an ulterior purpose; and (2) a willful act in the use of the process not proper in the regular conduct of the proceedings. (Prosser on Torts (2d ed.) § 100, p. 667; Spellens v. Spellens, supra, pp. 231-232, p. 626 of 317 P.2d.) Prosser describes the tort as follows: 'Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance of any formal use of the process itself, which constitutes the tort.' (P. 669; see Spellens v. Spellens, supra; Tellefsen v. Key System Transit Lines, 198 Cal.App.2d 611, 614-615, 17 Cal.Rptr. 919; Fairfield v. Hamilton, 206 Cal.App.2d 594, 603, 24 Cal.Rptr. 73.)' (Pp. 631-632 of 215 Cal.App.2d, pp. 394-395 of 30 Cal.Rptr.)

It is well settled that an action for abuse of process does not lie for maliciously causing process to issue. (See 72 C.J.S. Process § 120 p. 1190.) Also see Clark v. Nordholt (1898) 121 Cal. 26, 28, 53 P. 400, 401, holding that "If a person, having a good cause of action against another, willfully...