Tellefsen v. Key System Transit Lines

Decision Date28 December 1961
Citation17 Cal.Rptr. 919,198 Cal.App.2d 611
CourtCalifornia Court of Appeals Court of Appeals
PartiesLeo TELLEFSEN, Plaintiff and Appellant, v. KEY SYSTEM TRANSIT LINES, a corporation, Defendant and Respondent. Civ. 19835.

T. G. Fitzgerald, San Rafael, for appellant.

Hardin, Fletcher, Cook & Hayes, Oakland, Cyril Viadro, San Francisco, of counsel, for respondent.

BRAY, Presiding Justice.

Plaintiff appeals from a judgment entered on an order sustaining demurrer to his first amended complaint without leave to amend. 1

Question Presented.

Where the losing party, allegedly from ulterior motives, appeals from an adverse judgment, will an action for abuse of process lie against said party?

Record.

Plaintiff's first amended complaint alleged that in an action brought in the superior court against defendant for personal injuries plaintiff recovered judgment against defendant for the sum of $62,000; that maliciously defendant refused to pay said judgment 2 and although there was nothing in the case which defendant reasonably could think constituted reversible error, defendant maliciously, frivolously, 'with intent to advantage themselves of plaintiff's need, and with intent to set an example for other litigants and with intent to pursue a common plan for the cheap compromise settlement of verdicts against them, and with intent to further publicize their common plan amongst attorneys who might represent clients having other claims against these defendants and with other improper motives,' appealed from the judgment; 3 in doing this defendant abused the process of the appellate court; as a result of defendant's wrongdoing plaintiff suffered a coronary occlusion and other bodily injuries to his damage in the sum of $100,000. Plaintiff also sought exemplary and punitive damages in the sum of $100,000.

Defendant's general demurrer was sustained without leave to amend.

Does the Complaint State a Cause of Action for Abuse of Rpocess?

Plaintiff states: 'It is conceded that the application of the general rules governing abuse of process to the situation alleged in plaintiff's pleading has aspects of novelty and has not, to plaintiff's knowledge, been sanctified by decision directly in point.' Whether the appeal process is one that can be abused to give rise to a cause of action in tort has not been decided.

Process has normally been considered to mean those actions that are initiated either independently, such as the original commencement of a suit, or those processes initiated collaterally, such as an attachment.

Even though the rule of abuse of process could be applied to the appellate process the complaint here fails to state a cause of action and the demurrer was properly sustained. The complaint shows that the appellant (defendant here as well as in the case in which the appeal was taken) did nothing more than exercise its right to appeal, even though with alleged malicious intent. No other action than the mere taking of an appeal is alleged.

It is clear that in order for an action to be for abuse of process there must be some act additional to the issuance of process, where the party is entitled to such process. An improper motive in obtaining the process is not enough to afford grounds for an action for abuse of process if the latter were regularly issued. This principle is well illustrated by the case of Pimentel v. Houk (1951) 101 Cal.App.2d 884, 226 [198 Cal.App.2d 614] P.2d 739. There the complaint charging abuse of process alleged that the plaintiff, in an action on a promissory note, maliciously and not for the purpose of collecting the alleged debt but for the sole purpose of financially destroying the defendant, caused a writ of attachment to be levied upon the defendant's farming equipment. In the action of the trial court sustaining a demurrer to the complaint without leave to amend, the reviewing court said: 'In the case before us it may be conceded that the allegation that plaintiff caused the attachment to issue without any purpose of collecting the debt but solely for the purpose of destroying defendant financially, may constitute a sufficient allegation of an ulterior purpose; but we are of the opinion that defendant failed to allege use of the process for a purpose not proper in the regular conduct of the proceeding. It was entirely proper in the regular proceeding--to collect the notes sued upon--for plaintiff to resort to an attachment of defendant's assets. It is not alleged that said attachment covered property exempt from execution, that it covered an excessive amount of defendant's property, that the debt alleged to be owed by defendant was otherwise secured, or that defendant requested that the levy be made upon other property. On the face of the record plaintiff was fully within his rights in causing the writ of attachment to be issued and served; and the fact that he may have had an ulterior motive to destroy defendant financially did not render the use of the writ one improper in the regular conduct of the proceeding. Had plaintiff attached without malice, the effect would have been the same. * * * The opinion in Hauser v. Bartow, 273 N.Y. 370, 7 N.E.2d 268, 269, states that process must be used for something more than a proper use with a bad motive; that if a party uses it for the immediate use for which it was intended, he is ordinarily not liable, notwithstanding a vicious or vindictive motive; that if he uses the process of the court for its proper purpose, though there is malice in his heart, there is no abuse of process.' (Pp. 886, 887, 226 P.2d pp. 740, 741.)

Prosser on Torts, 2d edition, pages 667-668, states:

'The action for malicious prosecution, whether it be permitted for criminal or civil proceedings, has failed to provide a remedy for a group of cases in which legal procedure has been set in motion in proper form, with probable cause, and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which it was not designed. In such cases a tort action has been developed for what is called abuse of process. * * *

'Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. The purpose for which the process is used, once it is issued, is the only thing of importance. Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that it was obtained without probable cause or in the course of a proceeding begun...

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32 cases
  • Coleman v. Gulf Ins. Group
    • United States
    • California Supreme Court
    • 22 Mayo 1986
    ...use of the process, that is the problem. The facts before us bear a striking resemblance to those in Tellefsen v. Key System Transit Lines (1961) 198 Cal.App.2d 611, 613, 17 Cal.Rptr. 919, where the court found there could be no abuse of process because plaintiff had failed to allege a wilf......
  • Young v. Allstate Ins. Co.
    • United States
    • Hawaii Supreme Court
    • 26 Diciembre 2008
    ...acts that were, in themselves, antithetical to the legitimate conduct of the underlying case. See Tellefsen v. Key Sys. Transit Lines, 198 Cal.App.2d 611, 615, 17 Cal.Rptr. 919, 922 (1961) ("[M]erely taking a frivolous appeal is not enough to constitute an abuse of process.... There is no a......
  • Abraham v. Lancaster Community Hospital
    • United States
    • California Court of Appeals Court of Appeals
    • 30 Enero 1990
    ...parties who have abused or misused the process, have gone beyond the mere filing of a lawsuit."]; Tellefsen v. Key System Transit Lines (1961) 198 Cal.App.2d 611, 615, 17 Cal.Rptr. 919 [The taking of an appeal, even a frivolous one, is not enough to constitute an abuse of process; "defendan......
  • Golden v. Dungan
    • United States
    • California Court of Appeals Court of Appeals
    • 29 Septiembre 1971
    ...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 ......
  • Request a trial to view additional results
1 books & journal articles
  • Procedural torts
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • 31 Marzo 2022
    ...circumstances, the act of appealing a legal judgment may give rise to an abuse of process. Tellefsen v. Key System Transit Lines , 198 Cal. App. 2d 611, 613, 17 Cal. Rptr. 919 (1961) (no willful act in use of legal process where the only act alleged was the taking of appeal). Eviction under......

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