Younger v. Solomon

• Decision Date: 29 March 1974
• Docket Number: No. 1718,1718
• Citation: 113 Cal.Rptr. 113,38 Cal.App.3d 289
• Court: California Court of Appeals Court of Appeals
• Parties: Milton M. YOUNGER, Defendant, Appellant and Cross-Complainant, v. Gabriel W. SOLOMON, Respondent and Cross-Defendant.

Page 113

113 Cal.Rptr. 113

38 Cal.App.3d 289

Milton M. YOUNGER, Defendant, Appellant and Cross-Complainant, v. Gabriel W. SOLOMON, Respondent and Cross-Defendant.

No. 1718.

Court of Appeal, Fifth District, California.

March 29, 1974.

Hearing Denied June 5, 1974.

[38 Cal.App.3d 292] Chain, Younger, Cooney, Jameson & Lemucchi, Bakersfield, for appellant and cross-complainant.

Sims & Solomon, Bakersfield, for respondent and cross-defendant.

OPINION

FRANSON, Associate Justice.

Appellant and respondent are attorneys separately engaged in the practice of law in Kern County. On April 1, 1971, the respondent and nine other Kern County attorneys filed a complaint with the State Bar of California, alleging that appellant was guilty of professional misconduct in that he had organized a county-wide network of ambulance-chasers and cappers who, under his direction and on his behalf, solicited professional employment from victims of personal injury accidents and other types of cases. ¹ The letter described six different incidents of alleged unlawful solicitation and listed the names of the parties, the date thereof and a general description of the alleged activities of the appellant and his agents in each of the cases. The letter stated on information and belief that the specific examples of solicitation by appellant were but 'the tip of the iceberg' and that there were other attorneys in Kern County who were 'fully aware of other relevant cases of ambulance-chasing by (appellant) . . . and that said other attorneys (were) reluctant to step forward, but . . . (would) gladly and truthfully supply official investigators of the State Bar Association with the relevant facts.' The letter concluded by requesting appropriate disciplinary action and was signed by respondent and the nine other attorneys.

On April 5, 1971, respondent, on behalf of Evelyn Jenkins who is listed in the letter to the State Bar as a victim in one of the described accidents, filed an action for damages against the appellant for 'intentional infliction of emotional distress.' In her complaint, Mrs. Jenkins sought compensatory and punitive damages arising out of appellant's allegedly fraudulent acts in soliciting her personal injury suit and his wrongful interference in the settlement negotiations which she had been conducting with an insurance company. As a basis for an award of punitive damages paragraph 19 of her complaint alleges that the appellant's wrongful conduct was part of an overall scheme of ambulancechasing and misrepresentations which appellant had adopted and implemented over the years as a standard operating procedure in his law practice; that as a consequence he had accumulated substantial income and extensive property holdings and an assessment of substantial exemplary damages would be 'proper and mandatory if said defendant and his cohorts (were) to be deterred from continuing said outrageous and shameful conduct in the future.' ²

On April 22, 1971, the respondent prepared and filed a set of 92 interrogatories in Mrs. Jenkins' action against appellant. Interrogatory #86 reads as follows:

'Attached hereto is a copy of a complaint dated April, 1, 1971, signed by ten members of the Kern County Bar Association and filed against you and your firm with the State Bar Association which charges you generally and specifically with ambulance chasing of the same type and character as is alleged against by Plaintiff's complaint herein. With respect to said Bar Association complaint of 'ambulance chasing' set forth in detail:

(a) Your response thereto.

(b) All facts relevant to accusations stated therein which you have not stated above.

(c) The name, address and telephone number of each and every person whom you believe can give any testimony that would tend to refute and/or corroborate any of the general and/or specific accusations of ambulance chasing contained therein.

(d) The chronological history of all contacts you and/or any member, employee, agent and/or friend of your firm had with Johnny Wheat in 1968 and Joseph Jukich in 1969 and/or any relative or spouse of Johnny Wheat and/or Joseph Jukich.'

As stated in the interrogatory a copy of the letter to the State Bar was attached. ³

On December 3, 1971, the appellant filed a first amended cross-complaint against respondent for abuse of process, seeking compensatory and punitive damages. The cross-complaint forms the basis of this appeal and can be thusly summarized: Appellant alleges that the respondent persuaded Mrs. Jenkins to file her suit against appellant to enable him (the respondent) to use the interrogatory to make public the letter to the State Bar. Appellant alleges that respondent's copy of the letter is a confidential record of the State Bar by virtue of the provisions of State Bar rule 8; ⁴ that respondent's publication of the letter resulted from a use of the discovery process for a purpose other than that for which it was designed; and that respondent had as his ulterior purpose the intimidation of and injury to appellant and his elimination as a competitor in the practice of the law.

On December 7, 1971, the respondent, without demurring or answering the cross-complaint, moved for summary judgment. In his declaration in support of the motion he denies that he had persuaded Mrs. Jenkins to file the lawsuit against appellant and states that Mrs. Jenkins requested him to file the action after he advised her of her legal rights in connection with her personal injury claim and the contingent fee contract which she had signed with appellant. Respondent states that the complaint to the State Bar refers precisely to the same charges of ambulance-chasing against appellant as are made in Mrs. Jenkins' suit and that his motive in joining with other members of the Kern County Bar in charging appellant with ambulance-chasing and his motive in acting as counsel for Mrs. Jenkins 'were and are closely interrelated and intertwined.' Respondent then declares:

'I admit without the slightest hesitation that my purpose in lodging with the State Bar the charges of ambulance-chasing against (appellant) was and is that of bringing about an end to what he refers to as his role as 'professional competitor' and which I refer to as his roles as an 'unethical and unprofessional ambulance-chaser.' I admit, without the slightest hesitation, that I have stated and will continue to state that it is my firm belief that Mr. Younger's history of ambulance-chasing has been so flagrant and imbedded that he will not have been properly punished until and unless he has been disbarred from the practice of law . . .. I further admit . . . that It is my intention through prosecution of the complaint herein against (appellant) to attempt to inflict a substantial monetary loss upon (appellant) by recovery of substantial compensatory and punitive damages. I further admit . . . that I intend to share with and pass on to the State Bar any and all evidence of ambulance-chasing which I may develop against (appellant) through discovery proceedings in this case, because I am legally obligated to do so by State Bar Rule 19 . . ..' ⁵ (Emphasis added.)

No counter-declaration was filed by appellant. On January 17, 1972, the trial court granted the motion for summary judgment and ordered the cross-complaint dismissed.

DISCUSSION

In reviewing the summary judgment, our task is to determine if the facts contained in respondent's declaration considered in the light of the allegations of appellant's cross-complaint present a triable issue. (Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 851, 94 Cal.Rptr. 785, 484 P.2d 953.) ⁶ For the reasons hereafter stated, we hold that a factual question is presented as to whether respondent abused the process of the court. We also hold as a matter of law that appellant's conduct was not within the privilege accorded an attorney by Civil Code, section 47, subdivision 2.

The term 'process' as used in the tort of abuse of process has been broadly interpreted to encompass the entire range of procedures incident to litigation. (Barquis v. Merchants Collection Assn., 7 Cal.3d 94, 104, fn. 4, 101 Cal.Rptr. 745, 752, 496 P.2d 817, 824.) Barquis explains the rule in this manner:

'. . . (I)n Thornton v. Rhoden (1966) 245 Cal.App.2d 80, 94--95, 53 Cal.Rptr. 706, 717, (23 A.L.R.3d 1152), the court recognized that while 'the giving of a notice that a deposition will be taken is not 'process' in the strictest sense of the word . . . in a proper case (the) abuse of the powers which a litigant derives from the taking of a deposition on proper notice gives such notice the status of 'process' for the purpose of the tort (of abuse of process).' Similarly, in Tellefsen v. Key System Transit Lines (1961) 198 Cal.App.2d 611, 613, 17 Cal.Rptr. 919, the court, while finding no abuse in the case before it, recognized that under certain circumstances, the Taking of an appeal could give rise to an abuse of process. (See also Tranchina v. Arcinas (1947), 78 Cal.App.2d 522, 178 P.2d 65 (eviction under false pretense constituted abuse of process)). Other jurisdictions have recognized the propriety of an abuse of process action when a plaintiff has intentionally misfiled an action for an improper purpose. (See Bond v. Chapin (1844) 49 Mass. (8 Met.) 31.) This broad reach of the 'abuse of process' tort can be explained historically, since the tort evolved as a 'catch-all' category to cover improper uses of the judicial machinery that did not fit within the earlier established, but narrowly circumscribed, action of malicious prosecution. (See Italian Star Line v. United States Shipping Board E.F. Corp. (2d Cir. 1931) 53 F.2d 359, 361, 80 A.L.R. 576.)'

Written interrogatories which are specifically authorized by Code of Civil Procedure, section 2030, and in this case enforced with sanctions by the trial court, clearly come within the range of procedures incident to litigation; thus, the use...