Golden v. Dungan

• Decision Date: 29 September 1971
• Citation: Golden v. Dungan, 20 Cal.App.3d 295, 97 Cal.Rptr. 577 (Cal. App. 1971)
• Court: California Court of Appeals
• Parties: Celeste GOLDEN, Plaintiff and Appellant, v. J. M. DUNGAN, individually and as Trustee of the Estate of West Coast Properties, Inc., a California corporation, Bankrupt, George Frates and Sam Foster, Defendants and Respondents. Paul T. GOLDEN, Plaintiff and Appellant, v. J. M. DUNGAN, individually and as Trustee of the Estate of West Coast Properties, Inc., a California corporation, Bankrupt, George Frates and Sam Foster, Defendants and Respondents. Civ. 28175, 28210.

Page 577

97 Cal.Rptr. 577

20 Cal.App.3d 295

Celeste GOLDEN, Plaintiff and Appellant, v. J. M. DUNGAN, individually and as Trustee of the Estate of West Coast Properties, Inc., a California corporation, Bankrupt, George Frates and Sam Foster, Defendants and Respondents.

Paul T. GOLDEN, Plaintiff and Appellant, v. J. M. DUNGAN, individually and as Trustee of the Estate of West Coast Properties, Inc., a California corporation, Bankrupt, George Frates and Sam Foster, Defendants and Respondents.

Civ. 28175, 28210.

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

Sept. 29, 1971.

Moreno, Branner & Carnazzo, a Professional Corp., Salinas, for plaintiffs and appellants.

Anixter & Aronson, Burlingame, for J. M. Dungan, individually and as Trustee.

Wyckoff, Parker, Boyle & Pope, Watsonville, for Sam Foster.

SIMS, Associate Justice.

Plaintiffs, husband and wife, have each appealed from adverse judgments in separate actions filed against common defendants. ¹ The judgments followed the sustaining of demurrers, without leave to amend, to the husband's second amended complaint, which contained one cause of action for abuse of process and a second cause of action for intentional infliction of extreme emotional distress, and to the wife's first amended complaint for intentional infliction of extreme emotional distress. All three alleged causes of action are predicated upon the same circumstances. Plaintiff husband contends, severally, that the facts set forth in his complaint are sufficien to establish a cause of action for abuse of process, and both assert that the facts establish a cause of action for the intentional infliction of emotional distress.

It is concluded that the trial court properly determined that the husband had failed to establish a cause of action for abuse of process. The trial court believed that although the conduct alleged might be deemed 'inconsiderate, deliberate and vexatious,' it was not 'extreme or outrageous' within established principles giving rise to a cause of action for emotional distress. On review it is determined that the facts as alleged, if established, would warrant submitting the issue of defendants' liability to a trier of fact, and that the trial court erred in sustaining the defendants' demurrers to the respective causes of action alleged by the plaintiffs.

The complaints each allege, 'each of the defendants was the agent and employee of each of the remaining defendants, and in doing the things hereafter mentioned was acting within the scope of said agency and employment.' ² The charging allegations of the husband's second amended complaint are as follows: 'On or about January 23, 1969, defendants and each of them caused to be issued out of the Superior Court of the State of California in and for the County of Monterey a Summons and Complaint for Damages and to Examine Corporate Records.'

'On or about February 10, 1969, defendants knowingly, maliciously, and with intent to inflict extreme mental suffering and duress upon plaintiff and plaintiff's family, caused the agent of defendants and each of them to go to the home of plaintiff at 12:00 o'clock midnight to serve the process set forth (above). The agent of defendants and each of them, disregarding the fact that the lights in plaintiff's home were unlit and the home was darkened, and despite the fact that the agent of the defendants and each of the (sic) had never attempted service upon plaintiff nor had the defendants and each of them any reason to believe service of process could not be served at a reasonable time and manner, the agent of the defendants and each of them did then and there pound in a loud and boisterous manner upon the front door of plaintiff's home (in spite of the fact that plaintiff's home was equipped with a property-functioning (sic) doorbell) thereby awakening plaintiff, his family and the neighborhood. Thereafter, the said agent did serve process upon plaintiff.' ³

'As a proximate result of the intentional, outrageous and unreasonable conduct of the defendants and each of them, plaintiff became frightened, upset, nervous and humiliated, and suffered extreme and severe mental suffering and duress, and has been damaged thereby in the sum of $6,000.00.

'In doing the things herein alleged, the defendants and each of them acted maliciously and were guilty of wanton disregard of the rights and privacy of the plaintiff, and acted with an intent to harrass (sic) and annoy, and by reason thereof, plaintiff demands exemplary damages from the damages and each of them in the sum of $50,000.00.'

Similar allegations, including those found in the husband's first cause of action (see fn. 2 above), are found in the wife's first amended complaint. She alleged that the service of process was directed to and effected upon her husband. Nevertheless she further particularly alleged that each of the defendants acted 'knowingly, maliciously and with intent to vex, harass, irritate, and with the specific intent to inflict mental duress and suffering upon' herself.

I

When the deficiencies in a plaintiff's complaint have been raised on one or more occasions it is not an abuse of discretion to sustain a demurrer to a subsequent amended complaint without leave to amend. (Ruinello v. Murray (1951) 36 Cal.2d 687, 690, 227 P.2d 251; Archuleta v. Grand Lodge etc. of Machinists (1968) 262 Cal.App.2d 202, 210, 68 Cal.Rptr. 694; Agnew v. Parks (1959) 172 Cal.App.2d 756, 766, 343 P.2d 118; Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 29, 341 P.2d 749; Potter v. Richards (1955) 132 Cal.App.2d 380, 385, 282 P.2d 113.) On the other hand, the following rule is well recognized, 'On appeal from a judgment sustaining a demurrer to a complaint the allegations of the complaint must be regarded as true. * * * All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief.' (Lloyd v. California Pictures Corp. (1955) 136 Cal.App.2d 638, 642, 289 P.2d 295, 297. See also Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216; McHugh v. Howard (1958) 165 Cal.App.2d 169, 173, 331 P.2d 674; Hayden v. Collins (1905) 1 Cal.App. 259, 261, 81 P. 1120; and 3 Witkin, Cal.Proc. (2d ed. 1971), Pleading, § 844, p. 2449.)

II

Actionable abuse of process is defined as follows in 3 Restatement of Torts (1938) section 682, page 464:

'One who uses a 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.'

The compilers of the Restatement added the following 'Comment':

'a. The gravamen of the misconduct for which the liability stated in this Section is imposed is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish. Therefore, it is immaterial that the process was properly issued, that it was obtained in the course of proceedings which were brought with probable cause and for a proper purpose or even that the proceedings terminated in favor of the person instituting or initiating them. The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed under the rule stated in this Section.'

The principles set forth above were recognized and applied in this state in Tranchina v. Arcinas (1947) 78 Cal.App.2d 522, 178 P.2d 65. Thereafter they have been consistently applied. (See Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 465--467, 72 Cal.Rptr. 344, 446 P.2d 152; White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 347--348 & Fn. 6, 66 Cal.Rptr. 697, 438 P.2d 345; Spellens v. Spellens (1957) 49 Cal.2d 210, 230--233, 317 P.2d 613; and Czap v. Credit Bureau of Santa Clara Valley (1970) 7 Cal.App.3d 1, 5--6, 86 Cal.Rptr. 417. Cf. Meadows v. Bakersfield S. & L. Assn. (1967) 250 Cal.App.2d 749, 752--755, 59 Cal.Rptr. 34; Thornton v. Rhoden (1966) 245 Cal.App.2d 80, 94--95, 53 Cal.Rptr. 706; Coy v. Advance Automatic Sales Co. (1964) 228 Cal.App.2d 313, 317--321, 39 Cal.Rptr. 476 (disapproved, White Lighting Co. v. Wolfson, supra, 68 Cal.2d 336, 350, fn. 8, 66 Cal.Rptr. 697, 438 P.2d 345); Kyne v. Eustice (1963) 215 Cal.App.2d 627, 631--634, 30 Cal.Rptr. 391; Muller v. Muller (1962) 206 Cal.App.2d 731, 733, 23 Cal.Rptr. 900; Fairfield v. Hamilton (1962) 206 Cal.App.2d 594, 603--604, 24 Cal.Rptr. 73; Tellefsen v. Key System Transit Lines (1961) 198 Cal.App.2d 611, 613--617, 17 Cal.Rptr. 919, and Pimentel v. Houk (1951) 101 Cal.App.2d 884, 886--889, 226 P.2d 739. Note, also, Prosser, Torts (4th ed. 1971) § 121, pp. 856--858; and 1 Harper and James, The Law of Torts (1956) § 4.9, pp. 330--332.)

The allegations of the complaint in no way impugn the defendants' acts in filing an action and securing a summons. Plaintiff husband contends that the summons has been used 'to accomplish a purpose for which it is not designed' because the defendants 'knowingly, maliciously and with intent to vex, harrass (sic), irritate and more specifically with the intention of inflicting mental suffering and duress upon the plaintiff and the plaintiff's family' caused the process to be served on the plaintiff in the manner of which he complains. Analysis of the allegations of the first cause of action in his second amended complaint indicates that it is the manner of service, not the fact of service itself which is the gravamen of plaintiff's alleged cause of action.

An analysis of the precedents cited above reveals that generally it is only where process is used to obtain a collateral advantage that an action will lie, e.g., seizure of a second lender's collateral in the hands of a debtor in order to coerce the former to pay the debtor's original obligation (Templetion Feed & Grain Co. v. Ralston Purina Co., supra, ...