Slaughter v. Legal Process & Courier Service

Decision Date21 December 1984
Citation209 Cal.Rptr. 189,162 Cal.App.3d 1236
CourtCalifornia Court of Appeals Court of Appeals
PartiesBurnic SLAUGHTER, Plaintiff and Appellant, v. LEGAL PROCESS AND COURIER SERVICE, Leo D. Barnes, Ken McKinnon, Aetna Insurance Company, and Horacio Martinez, Defendants and Respondents. AO17116.

Richard Steiner, San Jose, for plaintiff and appellant.

Ronald L. Stefani, Gassett, Perry & Frank, San Jose, for defendants and respondents.

HOLMDAHL, Associate Justice.

This is an appeal from a summary judgment.

The judgment is affirmed, in part, and reversed, in part.

Statement of Facts and Procedural History

From March to August, 1980, plaintiff and appellant Burnic Slaughter lived at Sunnyhills Apartments (hereafter, Sunnyhills) in Milpitas, California. On May 12, 1980, Sunnyhills filed a complaint in unlawful detainer against appellant, and later hired Legal Process and Courier Service (hereafter, Legal Process) to serve process on him.

Horacio Martinez (hereafter, Martinez) was a process server employed by Legal Process. He was charged with the task of serving the process. On May 17, 1980, he signed a sworn affidavit of service stating that he had personally served appellant on May 12, 1980 at 7:30 p.m. at the latter's residence.

Between May 4 and May 14, 1980, appellant had been in Seattle with his family. Two days after his return, he found copies of the summons and complaint in his home. They had apparently been dropped through the mail slot and his children, upon their return, had picked them up and placed them upon a table with the rest of the mail. Appellant immediately contacted his attorney, who told him to do nothing but to await proper service. A default judgment was subsequently entered against him.

Appellant filed a motion to set aside the default judgment. At a hearing on the motion, Martinez testified. He identified without a doubt the person that he had served. That person thereafter took the stand and identified himself as Carl Welch. He stated that he had never seen Martinez in his life and that, a few minutes before the hearing, appellant's attorney, whom he also did not know, came up to him in an adjacent courtroom and asked him to sit next to him in the courtroom where the hearing concerning appellant was taking place. The court set aside the default judgment.

Appellant, thereafter, filed a complaint in Santa Clara County Superior Court against Martinez; Legal Process; Sunnyhills; Leo Barnes and Ken McKinnon, the "bonding agents or guarantors" of Legal Process; and Aetna Insurance Company. 1 The complaint alleged the following: Violation of due process rights, unfair competition by Legal Process, Barnes and McKinnon, violation of the Unruh Civil Rights Act and abuse of process by Martinez, Legal Process, Barnes, McKinnon and Sunnyhills; intentional infliction of emotional distress by Martinez, Legal Process, Barnes and McKinnon; negligence by Sunnyhills; and negligent infliction of emotional distress by Legal Process, Barnes, McKinnon, and Sunnyhills. Appellant sought general and punitive damages from Martinez, Legal Process, Barnes and McKinnon; damages from Barnes, McKinnon and Peerless to the extent permitted by law or bond; and, injunctive relief against Legal Process, Barnes and McKinnon.

Respondents did not demur to the complaint. Instead, they moved for summary judgment. 2 The trial court granted the motion, and appellant filed a timely notice of appeal.

Discussion

On appeal from a summary judgment, the reviewing court determines whether a triable issue of material fact exists. (Scott v. Farrar (1983) 139 Cal.App.3d 462, 466, 188 Cal.Rptr. 823.) Where the summary judgment was granted in favor of the defendant, the question is whether there is any possibility that the plaintiff may be able to establish his case. (Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 850, 200 Cal.Rptr. 674.) The defendants' declarations are construed strictly and those of the responding party, plaintiff, liberally. (LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 744-745, 176 Cal.Rptr. 224.) A summary judgment is a drastic procedure, and doubts as to the propriety of granting the motion are resolved in favor of the party opposing the motion. (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852, 94 Cal.Rptr. 785, 484 P.2d 953.)

In support of their motion for summary judgment, respondents argued that no triable issues of fact existed on the causes of action for abuse of process, intentional infliction of emotional distress, negligence or negligent infliction of emotional distress. Respondents' motion, however, did not refer to the remaining three causes of action alleged in the complaint. 3 Nor, as noted, did respondents demur to any of the causes of action.

We will determine whether there are triable issues of fact as to the four causes of action challenged by respondents in their motion, after first considering those causes of action not expressly before the trial court. As to those latter causes, we treat the summary judgment as a judgment on the pleadings and we determine whether appellant has stated a cause of action. If none is stated, we need not determine whether a triable issue of fact exists. (See C.L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal.App.3d 735, 135 Cal.Rptr. 483.)

Thus, we consider first whether appellant has stated causes of action for violation of due process rights, unfair competition, and violation of the Unruh Civil Rights Act.

Violation of Due Process Rights

In his complaint, appellant alleges a violation of his due process rights under the California Constitution. 4

The issue of whether a process server deprives a named defendant of his constitutional due process rights by failing to serve him properly, then signing a false affidavit, has not been previously decided by the California courts. However, we are aided in our analysis by the reasoning in Parratt v. Taylor (1981) 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, cited by neither party.

In that case, an inmate of a Nebraska prison had ordered hobby materials by mail. The packages were lost by prison officials. The inmate then filed an action against the officials under 42 United States Code section 1983. 5 In deciding whether such an action could lie, the Supreme Court stated: "Although [defendant] has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate ...." (Parratt v. Taylor, supra, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420.) The Supreme Court also found that a post-deprivation hearing could be sufficient insurance against due process violations. 6

In the present case, as in Parratt v. Taylor, appellant has not alleged that the statutory procedures are deficient. Also, unlike in Parratt, no deprivation occurred. 7 Appellant successfully availed himself of the opportunity provided by law to set aside the default judgment and to obtain a trial on the merits. The fact that such opportunity was available to him in itself attests to the due process afforded him by the state. The process server's failure to follow state-prescribed procedures which are proper does not constitute a due process violation.

We conclude that no cause of action exists. The granting of summary judgment was proper as to this cause of action.

Unfair Competition and Unruh Act Violation

The causes of action for unfair competition and violation of the Unruh Civil Rights Act are clearly meritless. The former is based upon allegations that defendants Legal Process, Barnes and McKinnon made "unrealistic promises to their customers," "advertis[ed] and communicat[ed] these promises to prospective customers and ... negligently and haphazardly conduct[ed] their business." They thereby "gained an unfair competitive advantage over other ... process servers ...."

Unfair competition is defined as "unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising." (Bus. & Prof.Code, § 17200.) Appellant had the burden of describing a scheme to mislead customers and of alleging that misrepresentations were made conforming to that scheme. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, 197 Cal.Rptr. 783, 673 P.2d 660.) He did not do so. The facts alleged are insufficient to state a cause of action.

As for the claimed violation of the Unruh Civil Rights Act (Civ.Code, §§ 51-53), appellant has not alleged that he was subjected to discrimination on the basis of sex, race, color, religion, ancestry or national origin (Civ.Code, § 51), or alleged any other basis for such a violation. Appellant has not stated a cause of action.

* * *

We now determine whether triable issues of material fact exist as to the remaining causes of action, which were expressly the subject of respondents' motion: Abuse of process, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress.

Abuse of Process

Appellant has alleged abuse of process. This tort essentially consists of a willful misuse of process to accomplish a purpose for which it was not designed. A showing of malice, whether express or implied, is required. (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, §§ 263, 264, pp. 2538-2539.)

In Golden v. Duncan (1971) 20 Cal.App.3d 295, 301-302, 97 Cal.Rptr. 577, plaintiffs had sought damages for abuse of process and intentional infliction of emotional distress. The act complained of was service of process at midnight in a boisterous manner, at their residence. Concerning the claim of abuse of process, the court stated: "Analysis of...

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