Czap v. Credit Bureau of Santa Clara Valley

• Decision Date: 28 April 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Joan Marie CZAP, Plaintiff and Appellant, v. CREDIT BUREAU OF SANTA CLARA VALLEY, a corporation, Defendant and Respondent. Civ. 26367.

Page 417

86 Cal.Rptr. 417

7 Cal.App.3d 1

Joan Marie CZAP, Plaintiff and Appellant, v. CREDIT BUREAU OF SANTA CLARA VALLEY, a corporation, Defendant and Respondent.

Civ. 26367.

Court of Appeal, First District, Division 4, California.

April 28, 1970.

Wm. H. Penaat, San Jose, for appellant.

Hirsch & Robinson, by Merrill M. Hirsch, San Jose, for respondent.

CHRISTIAN, Associate Justice.

Appellant Joan Czap sued to enjoin respondent Credit Bureau from garnishing her wages in execution of a $250 judgment for attorney fees incurred in a divorce action. She alleges that respondent rejected her offer to pay the judgment in installments and that repeated levies are threatened despite respondent's knowledge that all but $45 weekly of appellant's wages are exempt from execution under Code of Civil Procedure, section 690.11. The complaint alleges that repeated garnishments of wages jeopardize appellant's employment and that respondent's purpose is thereby to force appellant to pay the judgment out of exempt wages in order to avoid loss of employment.

In three separate causes of action based on the above allegations, appellant seeks (1) general and exemplary damages for abuse of process, (2) the same relief for unfair collection practices violating regulations applicable to respondent as a licensed collection agency, and (3) an injunction against such collection practices in behalf of the general public. Respondent's general demurrer was sustained as to all three causes of action; the appeal is from the ensuing judgment of dismissal and from a concurrent order denying appellant's application for a preliminary injunction.

The complaint alleges that respondent credit bureau took a judgment against appellant in the municipal court in the amount of $250 for an attorney's fee owed by appellant. Thereafter appellant offered to pay the judgment and costs at the rate of $20 per month; the offer was rejected. Appellant is the head of a household consisting of herself and two children; all her earnings are necessary for the support of the household. Respondent knew these facts; nonetheless, about one week before the complaint in the present action was filed, respondent garnished appellant's earnings for personal services rendered within the preceding 30 days.

It is alleged that respondent caused the garnishment to be made with knowledge that appellant's wages were all exempt, under Code of Civil Procedure, section 690.11, and with intent 'to cause (appellant) embarrassment with her employer * * * to wrongfully force her to pay said judgment out of the proceeds of her wages in order to avoid discharge * * *.' Appellant alleges that respondent's conduct caused her to be 'highly nervous and unable to properly perform her duties at her place of employment, thus jeopardizing her job; and her reputation at her place of employment has been damaged, * * *.' In her first cause of action, appellant sought general and exemplary damages upon the facts just related.

A second cause of action alleges an additional fact: that respondent is a collection agency licensed by the state and that its conduct constituted an unfair collection practice.

In a third cause of action it is additionally alleged that respondent usually and customarily proceeds in the manner indicated and, unless restrained, 'will repeat a garnishment weekly in an effort to collect the entire judgment * * *' thus endangering appellant's employment. Appellant attempted, as part of the third cause of action, to allege a class action in behalf of 'the general public, and particularly residents of Santa Clara County * * *' so as to extend injunctive protection against misuse of garnishment process to all members of the 'class' referred to.

Appellant contends, citing Bowden v. Spiegel, Inc. (1950) 96 Cal.App.2d 793, 216 P.2d 571, that the intentional use of 'an unreasonable method of attempting to collect a debt which proximately results in physical illness is actionable.' (Bowden v. Spiegel, Inc., Supra, at p. 795, 216 P.2d at p. 573.) It may perhaps be doubted that the mere levy of a wage garnishment can have 'gone beyond all reasonable bounds of decency' within the meaning of Restatement of Torts (1948 supp.) section 46, comment g, so as to support an award of damages for intentional infliction of emotional distress. (Cf., Perati v. Atkinson (1963) 213 Cal.App.2d 472, 474, 28 Cal.Rptr. 898.) However, there is another theory of liability more apt to the facts alleged in the first cause of action. That is, abuse of process. In Spellens v. Spellens (1957) 49 Cal.2d 210, 231, 317 P.2d 613, 625--626, the California Supreme Court approved the following definition of the tort taken from section 682 of Restatement of Torts: '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.' (See also 1 Cal.Jur.2d, Abuse of Process, § 5.) Another writer defines the elements of abuse of process as, 'first, an ulterior purpose, and second, a wilful act in the use of process not proper in the regular conduct of the proceeding.' (Prosser, Torts (3d ed. 1964) Abuse of Process, § 115, p. 877.) Prosser observes that '(t)he 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 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 or any formal use...