Kyne v. Eustice

Decision Date02 May 1963
Citation215 Cal.App.2d 627,30 Cal.Rptr. 391
CourtCalifornia Court of Appeals Court of Appeals
PartiesMarjorie KYNE, Plaintiff and Appellant, v. W. Gordon EUSTICE, Defendant and Respondent. Civ. 20862.

Eustice & Feeley, Los Altos, for respondent.

MOLINARI, Justice.

This is an appeal from a judgment of dismissal after the sustaining of a demurrer to the complaint.

QUESTIONS PRESENTED

1. Does the complaint state a cause of action?

2. Does the failure of the trial court to state in its decision the ground or grounds for sustaining demurrer constitute prejudicial error?

The Record

The plaintiff's complaint alleged as follows: that defendant had secured a default judgment against the plaintiff in the amount of $353.50; that thereafter the plaintiff was ordered to appear before the municipal court to be examined by the defendant concerning her property; that the plaintiff appeared without counsel pursuant to said order of examination, was sworn by the judge, who thereupon ordered that said examination be conducted in an anteroom out of the presence of the judge; that plaintiff was then questioned regarding her employment and how she was paid; that plaintiff answered that she was a music teacher and was paid directly by her employer, whom she identified; that she was not allowed to receive compensation directly from the students to whom she taught music under instructions from her employer; that defendant asked plaintiff if she had a list of her students in her possession and that plaintiff informed him that she did; that the defendant thereupon demanded that plaintiff give him such list, telling plaintiff that he was going to start calling all of her customers that very afternoon; that had not the defendant told the plaintiff that he was going to telephone her customers she would have promptly given him such list; that plaintiff feared that if the defendant made such calls she would be greatly embarrassed and humiliated in her employment and would suffer damage and loss of earnings in her employment; that for that reason she refused to give the list to the defendant; that defendant thereupon asked plaintiff to return with him to the courtroom where defendant told the judge that plaintiff had such list which she refused to deliver to him, and asked that the judge order the plaintiff to deliver the list to him; that the defendant refrained from telling the judge the nature of plaintiff's employment as she had explained it to him and that the defendant did not inform the judge as to the purpose for which he wanted the list; that the judge, being unaware of the nature of plaintiff's said employment and the purpose for which the list was desired, ordered the plaintiff of deliver the list to the defendant; that plaintiff refused to do so for 'the reasons set forth hereinabove'; that the judge thereupon ordered plaintiff into the custody of the bailiff for contempt of court and ordered her committed to jail until she delivered the list; that she was confined in jail for approximately four hours, after which time she surrendered the list and was thereupon released; that the defendant in telling the plaintiff that he was going to telephone to her students and in securing her confinement in jail acted with malice and with the intention to vex, harass and injure plaintiff; and that as a result of the embarrassment, humiliation and mental suffering in being committed and confined to jail plaintiff was damaged in the sum of $10,000.

The defendant demurred to the complaint on the ground that it did not state a cause of action, and on the special grounds of ambiguity, unintelligibility, and uncertainty. The specifications of special demurrer are predicated upon the claim that it is not clear whether the complaint seeks to charge the defendant 'with damages for threats for words only or damages under a contract where no actual damages are alleged, or for the plaintiff's own contempt in refusing to obey a court order'; and that the complaint does not state why the plaintiff did not explain the nature of her employment to the judge while on the witness stand. The lower court sustained the demurrer with 15 days to amend. The order sustaining the demurrer does not contain a statement of the specific ground or grounds upon which the decision is based as required by section 472d of the Code of Civil Procedure. 1 The plaintiff declined to amend her complaint, whereupon the judgment herein appealed from was entered.

Does the Complaint State a Cause of Action?

The court below did not specify the ground or grounds upon which the demurrer was sustained. Both parties to the appeal, however, have treated the ruling on the general demurrer as the only question on appeal. Neither of them has discussed the special demurrer. Grounds of demurrer not discussed by any of the parties need not be considered on appeal. (Butler v. Sequeira, 100 Cal.App.2d 143, 147, 223 P.2d 48.) The only question before us, then, is whether the complaint states a cause of action.

The plaintiff asserts that her cause of action is one for abuse of process, and maintains that a cause of action therefor has been stated by her in her complaint. The tort of abuse of process is defined in the Restatement as follows: '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.' (3 Rest., Torts, § 682, p. 464; Spellens v. Spellens, 49 Cal.2d 210, 231, 317 P.2d 613; Tranchina v. Arcinas, 78 Cal.App.2d 522, 525, 178 P.2d 65.) 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 or 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 A.C.A. 691, 700, 24 Cal.Rptr. 73.)

The process used by the defendant in the case at bench is the procedure provided by Code of Civil Procedure, section 714. This statute permits the judgment creditor to require the judgment debtor to appear and answer concerning his property before a judge, or a referee appointed by the judge. The object of the proceeding is to compel the judgment debtor to give information concerning his property; and such judgment-debtor examination is intended to be summary and factual, according the widest scope for inquiry concerning the property and business affairs of the judgment debtor. (Coleman v. Galvin, 78 Cal.App.2d 313, 318, 177 P.2d 606; McCullough v. Clark, 41 Cal. 298, 302.) The purpose of such supplementary proceedings is to discover and reach assets of a judgment debtor so as to apply them to the satisfaction of the judgment. (Smith v. Smith, 51 Cal.App.2d 29, 31-32, 124 P.2d 117; Coleman v. Galvin, supra; In re Finn, 155 Cal.App.2d 705, 709, 318 P.2d 816.) Accordingly, a third person or corporation alleged to have property of a judgment debtor or to be indebted to him may be examined concerning the same (Code Civ.Proc. § 717; Coleman v. Galvin, supra), and such proceedings may be properly used to obtain the possession of third-party debts after such examination. (Thomas v. Thomas, 192 Cal.App.2d 771, 778, 13 Cal.Rptr. 872; Hathaway v. Brady, 26 Cal. 581, 589.)

In the present case, the plaintiff does not contend that the legal procedure providing for her examination was not set in motion in proper form, but that the procedure was misused. The misuse complained of is the defendant's 'telling plaintiff that he was going to start telephoning all of her customers,' and 'in securing her commitment to and confinement in jail * * *.' There is no contention made, however, that it was improper for the defendant to interrogate the plaintiff concerning her students, and to obtain the list of such students in her possession. To the contrary, such acts are within the legitimate scope of the inquiry afforded by supplementary proceedings in aid of execution. Nor do we see any impropriety in the telephoning of third persons who themselves may be indebted to the judgment debtor. The defendant was not required to take the word of the plaintiff that none of the students on the list were indebted to her, but he was entitled to verify her statement and to inquire as to whether they were so indebted. If the judgment creditor has the right to examine such third-party debtors for the purpose of ascertaining whether they are in fact indebted to the judgment debtor, it appears to us that it would be proper for him to inquire in advance of such a proceeding as to the facts. There would, of course, be no duty upon such third party to make reply except upon examination pursuant to proper supplementary proceedings. Moreover, it appears to us that such a telephonic inquiry would have the salutary...

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