Ion Equipment Corp. v. Nelson

• Citation: 110 Cal.App.3d 868,168 Cal.Rptr. 361
• Parties: ION EQUIPMENT CORPORATION, Plaintiff and Appellant, v. Ronald L. NELSON et al., Defendants and Respondents. Civ. 44835.
• Decision Date: 06 October 1980
• Court: California Court of Appeals

Page 361

168 Cal.Rptr. 361

110 Cal.App.3d 868

ION EQUIPMENT CORPORATION, Plaintiff and Appellant, v. Ronald L. NELSON et al., Defendants and Respondents.

Civ. 44835.

Court of Appeal, First District, Division 2, California.

Oct. 6, 1980.

Hearing Denied Dec. 10, 1980.

Blair W. Stewart, Jr., Janet C. Graham, Wilson, Sonsini, Goodrich & Rosati, Palo Alto, for plaintiff and appellant.

Albert L. Boasberg, San Francisco, for defendants and respondents.

MILLER, Associate Justice.

Ion Equipment Corporation appeals from a judgment of dismissal following the granting of respondents' motion for judgment on the pleadings. ¹

The judicial history leading to the present appeal is chronologized as follows:

The instant case is an outgrowth of a previous case wherein respondent Ronald L. Nelson (hereafter "Nelson"), plaintiff in that case, received a judgment following trial against then defendant, Ion Equipment Corporation (hereafter "Ion"), for monies due under a claimed contract of employment between Nelson and Ion.

Ion filed a Notice of Appeal and on February 13, 1973, filed an undertaking on appeal for money judgment with two individual sureties, both of whom were accepted and qualified by the court. On July 5, 1973, this court granted Nelson's motion to dismiss the appeal.

On July 13, 1973, while the Court of Appeal retained jurisdiction over the matter, Nelson, through his attorney Albert Boasberg (hereafter "Boasberg"), obtained a writ of execution from the clerk of the superior court of Santa Clara County directed to the Sheriff of Los Angeles County.

On July 25, 1973, before entry of the remittitur from the Court of Appeal finalizing its decision of dismissal, the Sheriff served the writ of execution on Hughes Aircraft, a trade debtor of Ion.

Prior to this time, on January 1, 1971, Nelson engaged in a telephone conversation with an employee of Ion, while the employee was acting within the scope of his employment. The conversation concerned Nelson's claim of entitlement to employment with Ion. Nelson recorded this conversation without the knowledge or consent of Ion.

On August 6, 1973, Ion filed an action for damages against Nelson and Boasberg for abuse of process for injuries arising from their use of the writ of execution prior to the finality of the Court of Appeal's decision. A second cause of action was included for invasion of privacy pursuant to Penal Code section 632 in connection with Nelson's recording of the above-mentioned telephone conversation.

Respondents generally demurred to the complaint and the demurrer was sustained with leave to amend.

On November 7, 1973, Ion filed a first amended complaint containing three causes of action: abuse of process; violation of Penal Code section 632 (eavesdropping on confidential communications, etc.); and invasion of privacy. Respondents demurred to this amended complaint. The trial court overruled the demurrer as to the abuse of process cause of action, but sustained the demurrer, without leave to amend, on the second and third causes of action.

On March 22, 1974, Ion amended its first amended complaint to allege damages more specifically. Respondents again generally demurred to the complaint as amended, and the demurrer to the abuse of process cause of action was again overruled.

On December 19, 1974, Ion filed a motion for partial summary judgment asking that the court recognize as established for trial purposes the fact that respondents improperly caused the writ of execution to be issued at a time when enforcement of the judgment was stayed pending appeal. This motion was denied on January 17, 1975.

Prior to trial, respondents moved for a judgment on the pleadings. The motion was granted and a judgment of dismissal was entered without leave to amend. This appeal followed.

Appellant contends that its first cause of action is one for abuse of process and maintains that a cause action therefor has been stated in its complaint. The tort of abuse of process is defined in the restatement as follows: "One who uses legal process 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 (1957) 49 Cal.2d 210, 231, 317 P.2d 613; Tranchina v. Arcinas (1947) 78 Cal.App.2d 522, 525, 178 P.2d 65.) Some definite act or threat beyond the scope of the process is required in an abuse of process cause of action. Generally, an action lies only where the process is used to obtain an unjustifiable collateral advantage. For this reason, mere vexation or harassment are not recognized as objectives sufficient to give rise to the tort. (Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 466, 72 Cal.Rptr. 344, 446 P.2d 152; Spellens v. Spellens, supra, 49 Cal.2d at p. 232, 317 P.2d 613; Golden v. Dungan (1971) 20 Cal.App.3d 295, 301-302, 97 Cal.Rptr. 577.)

The essential elements of abuse of process are: (1) an ulterior motive; and (2) a willful act in the use of the process not proper in the regular conduct of the proceedings. (Spellens v. Spellens, supra, 49 Cal.2d at pp. 231-232, 317 P.2d 613; Kyne v. Eustice (1963) 215 Cal.App.2d 627, 632, 30 Cal.Rptr. 391; see also, Prosser, Torts (4th ed.), § 121, p. 857.)

Abuse of process is an intentional tort and its essential elements have not been met in the instant case. The pleadings do not establish an ulterior motive or a willful misuse of the process on respondents' part.

For purposes of abuse of process, the ulterior motive to prove is that the party employing the process did so for an end not germane thereto. (Debt Collection Tort Practice (Cont.Ed.Bar 1971) § 5.19, p. 129.) And, an improper purpose may consist in achievement of a benefit totally extraneous to or of a result not within its legitimate scope. (Templeton Feed & Grain v. Ralston Purina Co., supra, 69 Cal.2d at p. 466, 72 Cal.Rptr. 344, 446 P.2d 152; Spellens v. Spellens, supra, 49 Cal.2d at p. 231, 317 P.2d 613.) Mere ill will against the adverse party in the proceedings does not constitute an ulterior or improper motive. (Kyne v. Eustice, supra, 215 Cal.App.2d at p. 632, 30 Cal.Rptr. 391; Pimentel v. Houk (1951) 101 Cal.App.2d 884, 886, 226 P.2d 739.)

Here, the pleadings indicate that respondents' motive was to attempt to collect an unsatisfied judgment that appellant owed respondent Nelson.

Appellant attempts to infer an ulterior motive on respondents' part by alleging that issuance of the writ itself was improper because it was issued at a time when enforcement of a money judgment was stayed on appeal pursuant to Code of Civil Procedure section 917.1. Issuance of the writ may be improper, but since appellant's cause of action is framed as one for abuse of process, it must still sufficiently plead the elements necessary in establishing the tort. Appellant has failed to do so because it has not established the intent on respondents' part in causing the writ to issue. Therefore, the trial court properly granted respondents' motion for judgment on the pleadings.

Next, appellant contends that it was an abuse of discretion by the trial court to grant respondents' motion for judgment on the pleadings without granting appellant leave to amend where the complaint had been twice upheld against a general demurrer.

A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. (4 Witkin, Cal. Procedure, Proceedings Without Trial, § 161, p. 2816.) The motion may be made even when a general demurrer has been previously overruled. The interests of all parties are advanced by avoiding a trial and reversal for defect in pleadings. The objecting party is acting properly in raising the point at his first opportunity, by general demurrer. If the demurrer is erroneously overruled, he is acting properly in raising the point again, at his next opportunity. If the trial judge made the former ruling himself, he is not bound by it. (Davis v. City of Santa Ana (1952) 108 Cal.App.2d 669, 684, 239 P.2d 656.) And, if the demurrer was overruled by a different judge, the trial judge is equally free to reexamine the sufficiency of the pleading. (Ser-Bye Corp. v. C.P.&G. Markets (1947) 78 Cal.App.2d 915, 918, 179 P.2d 342; see also 4 Witkin, supra, § 170, pp. 2822-2823.)

Looking to the facts of the instant case, general demurrers were raised by respondents on two separate occasions. The demurrers were overruled by two different superior court judges. Since the grounds for a motion for judgment on the pleadings are the same as the grounds for a general demurrer (1 Cal.Civil Procedure Before Trial (Cont.Ed.Bar 1977) § 13.2, p. 448), respondents were entitled to raise the motion as they so did. The trial judge reexamined the complaint and found that it did not state a cause of action for abuse of process because it lacked the elements of ulterior motive and misuse of the process on the part of respondents. Thereafter, a judgment of dismissal on motion for judgment on the pleadings was granted without leave to amend.

We agree with the trial court's decision in granting the motion because we have determined that the pleadings do not disclose those elements of the tort. Nor does the record suggest that had appellant been given leave to amend its complaint, it could have done so successfully.

The right to amend is not unqualified. If a party has had several chances to amend a defective pleading and fails to do so (Hardy v. Admiral Oil Co. (1961) 56 Cal.2d 836, 842, 16 Cal.Rptr. 894, 366 P.2d 310), or if the defect is not curable by amendment (Shabrick v. Moore (1961) 195 Cal.App.2d 56, 60, 15 Cal.Rptr. 310), the court may grant the motion for judgment on the pleadings.

Appellant attempted to amend its complaint to allege damages more specifically. However, it failed to amend its complaint with sufficient specificity as to the element of intent required in its cause of action.

Appella...