The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

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Abuse of Process

1 Elements and Case Citations

  1. Defendant contemplated an ulterior motive in using the process; and
  1. Defendant committed a willful act in the use of the process not proper in the regular conduct of the proceedings.

Rusheen v. Cohen, 37 Cal. 4th 1048, 1057 (2006).

“California takes a broad view of ‘process’ that may be actionable if used wrongly. ‘“Process,” as used in the tort of “abuse of process,” has never been limited to the strict sense of the term, but instead has been interpreted broadly to encompass the entire range of “procedures” incident to litigation.’”

Booker v. Rountree, 155 Cal. App. 4th 1366, 1371 (2007).


CALIFORNIA STATE COURTS

California Supreme Court: Rusheen v. Cohen, 37 Cal. 4th 1048, 1056-57 (2006).

California 1st Dist.: Merlet v. Rizzo, 64 Cal. App. 4th 53, 64 (1998).

California 2d Dist.: JSJ Ltd. Partnership v. Mehrban,205 Cal. App. 4th 1512, 1522 (2012).

California 3d Dist.: State Farm Mut. Auto. Ins. Co. v. Lee, 193 Cal. App. 4th 34, 40 (2011).

California 4th Dist.: Daniels v. Robbins, 182 Cal. App. 4th 204, 216 (2010).

California 5th Dist.: Younger v. Solomon, 38 Cal. App. 3d 289, 296-97 (1974).

California 6th Dist.: Drummond v. Desmarais, 176 Cal. App. 4th 439, 451 (2009).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit: Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1011 (9th Cir. 2011).

Central District: Gonzalez v. United States, No. CV-12-01912 DMG (DTBx), 2013 U.S. Dist. LEXIS 33298, *24-25 (C.D. Cal. Mar. 11, 2013).

Eastern District: Dunmore v. Dunmore, No. 2:11-cv-2867 MCE AC PS, 2013 U.S. Dist. LEXIS 32654, at *11 (E.D. Cal. Mar. 7, 2013).

Northern District: Farahani v. Floria, No. 12-CV-04637-LHK, 2013 U.S. Dist. LEXIS 56679, at *38-39 (N.D. Cal. Apr. 19, 2013).

Southern District: Multimedia Patent Trust v. LG Elecs., Inc., No. 12-CV-2731-H (KSC), 2013 U.S. Dist. LEXIS 156686, at *11-12 (S.D. Cal. Aug. 1, 2013).

References: Restatement (Second) of Torts § 682 (1965)

2 Defenses to Claim for Abuse of Process

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses. See Chapter 1 for all defenses.

(2) Statute of Limitations: Cal. Code Civ. Proc. § 340(3) (one year); Cantu v. Resolution Trust Corp., 4 Cal. App. 4th 857, 886-87 (1992).

(3) The litigation privilege can defeat an abuse-of-process claim. See Merlet v. Rizzo, 64 Cal. App. 4th 53, 65 (1998); see also Cal. Civ. Code §47(b). Recovery is precluded “for tortiously inflicted injury resulting from publications or broadcasts made during the course of judicial and quasi-judicial proceedings, but does not bar recovery for injuries from tortious conduct regardless of the purpose for which such conduct is undertaken.” Kimmel v. Goland, 51 Cal. 3d 202, 205 (1990); see also Cal. Civ. Code § 47(2).

(4) Requires More Than Filing Suit: “Simply filing a lawsuit for an improper purpose is not abuse of process.” Trear v. Sills, 69 Cal. App. 4th 1341, 1359 (1999). “The remedy for filing a lawsuit for an improper purpose, of course, is malicious prosecution.” Id.; see Chapter 43 herein.

(5) There is no abuse of process if the process is used for the proper purpose even though the defendant uses it for wrongful and malicious motives. Thus, the plaintiff must “allege a willful act in the use of the [relevant] process not proper in the regular conduct of the procedure.” Cantu v. Resolution Trust Corp., 4 Cal. App. 4th 857, 886 (1992).

(6) Defendant’s use of the legal process for “excessive attachments should be treated as giving rise to a cause of action for abuse of process rather than for malicious prosecution.” White Lightening Co. v. Wolfson, 68 Cal. 2d 336, 350-51 (1968).

(7) California has declined to allow “a tort cause of action for the intentional first party spoliation of evidence.Rusheen v. Cohen, 37 Cal. 4th 1048, 1063 (2006). The Supreme Court “concluded that the benefits of creating a tort remedy for intentional first party spoliation were outweighed by: (1) the policy against creating derivative tort remedies for litigation-related misconduct; (2) the strength of existing nontort remedies for spoliation within the underlying action itself rather than through an expansion of the opportunities for initiating one or more additional rounds of litigation after the first action has been concluded; and (3) the uncertainty of the fact of harm in spoliation cases.” Id. at 1063-64.