Kinnamon v. Staitman & Snyder

• Decision Date: 08 February 1977
• Citation: 66 Cal.App.3d 893,136 Cal.Rptr. 321
• Court: California Court of Appeals Court of Appeals
• Parties: Catherine Green KINNAMON, Plaintiff and Appellant, v. STAITMAN & SNYDER, a Professional Law Corporation, and Jack T. Tannenbaum, Defendants and Respondents. Civ. 49426.

Page 321

136 Cal.Rptr. 321

66 Cal.App.3d 893

Catherine Green KINNAMON, Plaintiff and Appellant, v. STAITMAN & SNYDER, a Professional Law Corporation, and Jack T. Tannenbaum, Defendants and Respondents.

Civ. 49426.

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

Feb. 8, 1977.

Hearing Denied April 7, 1977.

Catherine Green Kinnamon in pro. per.

Kroll, Edelman, Elser & Wilson and Gerald Kroll, Los Angeles, for defendants and respondents.

THOMPSON, Associate Justice.

In the case at bench, we consider the legal sufficiency of a complaint to state a cause of action for intentional infliction of emotional distress. We conclude that allegations that a lawyer in violation of Rule 7--104 of the California Rules of Professional Conduct threatened plaintiff with criminal prosecution to obtain an advantage in a civil case, that the threat was made with the intent of inflicting emotional distress, and that severe emotional distress resulted, are legally sufficient. Accordingly, we reverse a judgment of dismissal entered after a demurrer to a complaint containing those allegations was sustained without leave to amend.

Appellant filed her first amended complaint alleging that: (1) defendants Bernard Snyder, Jack Staitman, and Jack J. Tannenbaum are attorneys at law retained by defendant John B. O'Cana; (2) to collect a $250 check which plaintiff had given to O'Cana which had been dishonored for insufficient funds, the attorney defendants sent a letter to plaintiff stating, 'As you may be aware to issue a check with insufficient funds to cover said check is a misdemeanor. In addition to any Civil remedies my client may have, we also plan to exercise our rights to file a criminal complaint against you for your action herein;' (3) with intent to 'injure, frighten and emotionally distress' plaintiff defendants failed to inform her in their letter that fraudulent intent was an element of the crime of issuing a check with insufficient funds; (4) plaintiff suffered emotional distress and physical illness as a result of the letter; and (5) the letter was sent with the knowledge that the threats contained in it were illegal and unethical, with knowledge that the statements were untrue, would cause emotional distress, and were intended to do so; (6) the statements in the letter were made to secure payment of the obligation represented by the check; and (7) plaintiff believed the check to be good when she issued it.

Defendants' general demurrer to the first amended complaint was sustained without leave to amend. This appeal from the resulting judgment of dismissal followed.

1] The trial court erred in its ruling. The complaint contains allegations which, if true, support a cause of action for intentional infliction of emotional distress.

'2] The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Citations.) Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendants' conduct was unprivileged. (Citations.)' (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394, 89 Cal.Rptr. 78, 88.)

Here the first amended complaint alleges outrageous conduct on the part of the attorney defendants acting as agents of defendant O'Cana. Rule 7--104 of the California Rules of Professional Conduct states in pertinent part: 'A member of the State Bar shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action . . .' Thus, the conduct charged in the complaint is of such an extreme nature as to be 'outrageous.' (See Anno., Debt Collection--Emotional Distress, 46 A.L.R.3d 772, 780--781; see also Libarian v. State Bar (1952) 38 Cal.2d 328, 239 P.2d 865; Bowden v. Spiegel, Inc. (1950) 96 Cal.App.2d 793, 216 P.2d 571.)

Here the first amended complaint alleges defendants' intention of causing emotional distress, plaintiff's suffering such emotional distress that she became physically ill, and proximate cause.

3] There remains only the question of whether the first amended complaint discloses that the communication from defendants to plaintiff was privileged.

Citing Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 131 Cal.Rptr. 592, defendants argue that it does. In Lerette, counsel in the course of his representation of a client directed a letter to the chairman of the board of a bank stating that, absent a settlement, the bank would be sued for violation of the federal and state securities law because the bank's president had misrepresented the financial situation of a person to whom the lawyer's client had extended credit. The Court of Appeal held that the communication was a publication unqualifiedly privileged by Civil Code section 47, subdivision (2), as made in the course of a judicial proceeding and hence could not be the basis for an action in defamation instituted by the bank president. (60 Cal.App.3d at pp. 576--578, 131 Cal.Rptr. 592.) The court held, also, that on the facts there present the privilege applied to defeat a cause of action for intentional infliction of emotional distress because 'To allow (the bank president) to proceed with this cause of action would substantially defeat the purpose of the privilege . . .' (60 Cal.App.3d at p. 579, 131 Cal.Rptr. at p. 595.)

Here the situation is materially different from that presented in Lerette. Allowing the instant action for intentional infliction of emotional distress does not defeat the purpose of the privilege afforded to communications in the course of litigation by subdivision (2) of Civil Code section 47. The threat by an attorney to present criminal charges in order to obtain an advantage in a civil action is one which the Rules of Professional Conduct proscribe. (Rule 7--104, Supra.) The threat thus cannot serve the purpose of litigation. It is a cause for discipline of the attorney (Libarian v. State Bar, supra, 38 Cal.2d 328, 239 P.2d 865; see also In re Sadicoff (1929) 208 Cal. 555, 282 P. 952), a proposition totally inconsistent with a privileged status.

We thus conclude that no privilege insulates defendants from liability in the case at bench.

The judgment is reversed.

LILLIE, Acting P.J., concurs.

HANSON, Associate Justice (dissenting).

I respectfully dissent.

BACKGROUND

The following chain of events can reasonably be gleaned from the skimpy record on appeal:

Plaintiff/appellant Catherine Green Kinnamon (hereinafter plaintiff) started the chain of events by giving a check in the amount of $250 to John B. O'Cana which was returned to him because of insufficient funds.

Mr. O'Cana retained the services of Staitman & Snyder, a professional law corporation (composed of Jack M. Staitman and Bernard Snyder) and attorney Jack J. Tannenbaum (hereinafter collectively Attorneys) to represent him to recover the $250 from plaintiff.

Defendant Attorneys sent a demand type letter dated December 30, 1975 (received by plaintiff on December 31, 1975), advising her that they represented Mr. O'Cana in connection with the $250 check she had given him which was returned because of insufficient funds. The letter contained the following two sentences:

'As you may be aware to issue a check with insufficient funds to cover said check is a misdemeanor. In addition to any Civil remedies my (sic) client may have, we also plan to exercise our rights to file a criminal complaint against you for your action herein.'

Plaintiff appearing in propria persona filed a civil complaint in the superior court entitled 'First Amended Complaint for the Intentional Infliction of Emotional Distress' (Case No. NWC 48888). In addition to the allegations described in the majority opinion she alleged that 'At all times herein mentioned Section 650 of the California Penal Code was in full force and effect and provided as follows: 'SENDING LETTERS THREATENING TO EXPOSE ANOTHER. EVERY PERSON WHO KNOWINGLY AND WILLFULLY SENDS OR DELIVERS TO ANOTHER ANY LETTER OR WRITING WHETHER SUBSCRIBED OR NOT THREATENING TO ACCUSE HIM OR ANOTHER OF A CRIME OR TO EXPOSE OR PUBLISH ANY OF HIS FAILINGS OR INFIRMATIES (sic) IS GUILTY OF A MISDEMEANOR.''

Plaintiff made the further allegation, which we consider as a true factual allegation on appeal from a judgment of dismissal sustaining a demurrer, ¹ that 'she believed said check to be good when she issued it'; that defendant Attorneys intentionally omitted that the 'issuance would be a misdemeanor only if said check was issued with the intent to defraud or with knowledge that there were not sufficient funds to cover said check at the time it was issued' which facts defendant Attorneys knew and 'with the purpose and intent to injure, frighten and emotionally distress plaintiff (her) omitted this fact in the letter'; that by reason of this omission she thought she was 'guilty of the misdemeanor mentioned' and 'became emotionally upset and physically sick' and 'was sick, upset, nervous and distressed for a period of five (5) days thereafter. During said period of time Plaintiff (she) was required to and did take medication to calm her nerves in an attempt to alleviate her suffering but did during said period of time suffer severe emotional distress and fear because of Defendants' threat.'

Plaintiff prayed for a judgment in the sum of $25,000 for general damages and $25,000 for punitive damages.

Defendant Attorneys filed a demurrer to the original complaint which was sustained with leave to amend and their demurrer to the first amended complaint was sustained by the trial court without leave to amend.

Plaintiff, appearing in propria...