Tellefsen v. Key System Transit Lines
Decision Date | 28 December 1961 |
Citation | 17 Cal.Rptr. 919,198 Cal.App.2d 611 |
Court | California Court of Appeals Court of Appeals |
Parties | Leo 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.
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.
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: (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. * * *
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...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......
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...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......
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