KAPPEL v. BARTLETT

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Court of Appeal, Second District, Division 1, California.

Karl G. KAPPEL, Plaintiff and Appellant, v. David Aulden BARTLETT et al., Defendants and Respondents.

No. BO25210.

Decided: February 26, 1988

Edwin B. Stegman, Los Angeles, for plaintiff and appellant. Saphier & Rein, and Richard E. Walden, Los Angeles, for defendants and respondents.

INTRODUCTION

By second amended complaint, plaintiff Karl G. Kappel (plaintiff and/or Kappel), sought both compensatory and punitive damages from defendants Brian Thomas Fecher (Fecher), David Aulden Bartlett (Bartlett), doing business as Attorney Services Systems, a fictitious name (Attorney Services); Attorney Services Systems, Inc., a California corporation, and Does.   Plaintiff alleged three causes of action for 1) perjury, 2) negligent infliction of emotional distress and 3) negligence.

The trial court sustained the defendants' demurrers to the second amended complaint without leave to amend.   Judgment of dismissal was entered on October 16, 1986;  notice of entry of judgment was filed and served October 22, 1986.   Plaintiff filed a timely notice of appeal on December 19, 1986.  (See Cal.Rules of Court, rule 2(a).)

STANDARD OF REVIEW

The standard of review applicable when appeal is taken from a judgment after demurrers sustained without leave to amend is well established.  “[A] general demurrer admits the truth of all material factual allegations in the complaint.  [Citation].  [T]he question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citation].  [T]he plaintiff need only plead facts showing that he may be entitled to some relief․”  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

Moreover, “[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.   The courts of this state have, of course, long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.   [Citations.]”  (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817.)

FACTS

Plaintiff Kappel is an attorney.   Pauline Shaw, a former client of Kappel, filed an action against him concerning his representation of her in business matters.   The Shaw complaint alleged fraud and deceit, breach of fiduciary duty, negligence, money had and received and negligent misrepresentation.   Shaw's counsel sent the summons and complaint out for service, utilizing the defendants named here for that purpose.

The complaint of plaintiff Kappel alleges that on May 13, 1983, defendant Fecher, an agent of the other defendants, executed a declaration that he had personally served Kappel with the Shaw summons and complaint, when in fact defendant Fecher had not done so.   On June 14, 1983, Shaw served and filed a request to enter default against Kappel, and default was duly entered on June 16, 1983.1

Shaw proved up her default in her action against Kappel, and on February 23, 1984, received an award of $41,788.72 in compensatory damages and $50,000 in punitive damages;  at no time had Kappel appeared in the action.   On or about May 1, 1984, Shaw applied for and obtained a writ of execution against Kappel.   On June 20, 1984, plaintiff Kappel alleged, the marshal executed on plaintiff's property.

Plaintiff Kappel then made a motion to vacate the default and default judgment;  the motion was granted on July 31, 1984.  (Kappel apparently filed a declaration executed by a client, stating that on May 13, 1982, he (Kappel) was representing the client on legal business in San Bernardino, and could not have been in Westwood where defendant Fecher declared, under penalty of perjury, that personal service had been made on Kappel.)

On June 3, 1985, plaintiff Kappel filed his original complaint consisting of four causes of action (fraud, perjury, negligent infliction of emotional distress and negligence) against the defendants.   Demurrer to the original complaint was sustained with leave to amend in order to afford plaintiff an opportunity to state a cause of action cognizable at law for the asserted wrong:  the false declaration of personal service.   Plaintiff's second amended complaint, filed on May 12, 1986, consisted of three causes of action (perjury, negligent infliction of emotional distress and negligence).   On August 21, 1986, the second amended complaint was sustained without leave to amend, giving rise to this appeal.

ISSUES

Given the standard of review, did the second amended complaint sufficiently state facts which entitle plaintiff to relief under any legal theory not barred by the applicable statute of limitations?

DISCUSSION

I

As previously noted, the three causes of action in plaintiff's second amended complaint are respectively entitled (1) “Perjury”;  (2) “Negligent infliction of emotional distress”;  and (3) “Negligence.”

 We have concluded that a complaint alleging that a process server has executed a false declaration of service does not give rise to a cause of action for “perjury.”   No such cause of action exists, and we decline to create one by judicial fiat.

We further conclude that neither the second nor third cause of action, based on the theory of negligence, were viable on the facts presented, and therefore the trial court properly sustained demurrers to these causes of action without leave to amend.  (Nor was plaintiff's previous attempt to plead a cause of action for fraud meritorious;  the requisite elements of fraud simply could not be alleged here.)

During oral arguments before this court, counsel for plaintiff Kappel requested that if this court was inclined to find that the demurrers to his pleaded causes of action were properly granted that we remand so that he be afforded an opportunity to attempt to plead a cause of action for abuse of process.

ABUSE OF PROCESS

Although inartfully pleaded, Kappel's complaint indicates that he may be able to plead the tort of abuse of process, long recognized at common law but infrequently utilized.   Prosser & Keeton on Torts (5th ed. 1984) chapter 21, section 121, page 899, explains that abuse of process may apply to misuse of the judicial system where the narrowly construed tort of malicious prosecution does not.  Barquis v. Merchants Collection Assn., supra, 7 Cal.3d 94, 104, 101 Cal.Rptr. 745, 496 P.2d 817, states that “ ‘Process,’ as used in the tort of ‘abuse of process,’ has been interpreted broadly to encompass the entire range of ‘procedures' incident to litigation․  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.  [Citation.]”

The facts upon which plaintiff relied in filing his complaint were simple, but identification of a cause of action was not.   Shaw's civil suit named plaintiff Kappel as defendant, but the complaint, not having been served personally or by any other acceptable method (pursuant to Code Civ.Proc., § 415.10 et seq.), conferred no jurisdiction upon the court over Kappel's person.   Shaw's civil matter proceeded to judgment by default, however, because the process server entrusted to serve the summons and complaint allegedly did not do so, yet falsely executed a declaration that he had.   After entry of judgment, plaintiff Kappel's property was subjected to an invalid writ of execution.

 Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 209 Cal.Rptr. 189 presented somewhat similar facts.   The Slaughter court discussed the categories of civil wrongs which might govern improper personal service, and settled on the tort of negligent infliction of emotional distress as a basis for liability.

The Slaughter court stated that “It is foreseeable that improper service of process, combined with subsequent falsification of an affidavit, could result in a default judgment against the person served and in emotional as well as financial injury to him.   In addition, the policy of encouraging process servers to perform their function responsibly is a sound one, justifying imposition of a legal duty of care towards the individual being served.   The judicial system relies upon process servers to ensure that the due process rights of a defendant are protected, and potentially severe consequences are likely to result for a defendant when a process server does not perform his task as prescribed by law.  [Fn. omitted.]”  (Id. at 1249, 209 Cal.Rptr. 189.)

While we agree with the Slaughter court that public policy requires faithful execution of service by process servers for a myriad of sound reasons, we do not perceive that the facts presented in the case at bench constitute negligence.   Negligence presumes the absence of care, i.e., carelessness.   Falsely executing a declaration of service is not merely an absence of care.   It is an intentional act, involving conscious wrongdoing.   In our view, it is not and cannot be regarded as a technical mishap.   Chaos would result if the legal community could not depend on the truthfulness of declarations of service of process.   Public policy requires that it be regarded as serious, with consequences sufficiently adverse to act as deterrence.

 “Service of process is the means by which a court having jurisdiction over the subject matter asserts its jurisdiction over the party and brings home to him reasonable notice of the action.”  (Judicial Council of Cal. com., 14 West's Ann.Code Civ.Proc. (1973 ed.) § 413.10, p. 541.)   It is an indispensable element of due process of law.  (2 Witkin, Cal.Procedure (3d ed. 1985) Jurisdiction, § 84, p. 454.)

Nonlawyers routinely perform this essential task;  Code of Civil Procedure section 414.10 provides that any person at least 18 years of age and not a party to the action may serve a summons.   The Legislature, recognizing the importance of this function, has subjected process servers to regulation in the Business and Professions Code section 22350 et seq.   The regulatory scheme applies to any individual who makes more than ten services a year in this state, but there are some important exceptions:  one of them excludes attorneys and their employees from regulation pursuant to these statutory provisions.

The provisions are principally directed to professional process servers, and any individual who falls within the statutory description must register with the county clerk of the county in which he resides or conducts his business.   The registrant must also put up a cash deposit or a bond, and section 22357 provides, in pertinent part, that “(a) Any person who recovers damages in any action or proceeding for injuries caused by a service of process which was made by a registrant and did not comply with the provisions of law governing service of process in this state may recover the amount of the damages from the bond required by Section 22353.”

It is important to note that section 22356 declares that “A registrant shall be responsible at all times for the good conduct of his employees and any person acting as an independent contractor for him.”

 “To establish a cause of action for abuse of process, a plaintiff must plead two essential elements:  that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.”  (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792, 226 Cal.Rptr. 90, 718 P.2d 77;  Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 466, 72 Cal.Rptr. 344, 446 P.2d 152;  see also, Prosser & Keeton on Torts, supra, ch. 21, § 21, p. 899.)

In respect to the “ulterior motive” element, here plaintiff has not pleaded that defendant Fecher harbored personal ill will, or that Fecher and the other defendants entertained some collateral, illegal objective in executing the false declaration.   The case law is not uniform in recognizing that no actual malice is required for the establishment of an ulterior motive, but “if malice is a necessary element it is settled that it may be inferred from the wilful abuse of the process.”  (Tranchina v. Arcinas (1947) 78 Cal.App.2d 522, 526, 178 P.2d 65;  4 Witkin, Summary of Cal.Law (8th ed. 1973), § 264, p. 2538.)   In Comment, Abuse of Process and Attachment:  Toward a Balance of Power, 30 UCLA L.Rev., 1218, 1229, it is observed that “[O]nce the wrongful act has been established, courts often infer the requisite ulterior purpose.”

Accordingly, we conclude that the first element of abuse of process in this case was satisfied by knowingly executing a false declaration of service.

 In respect to the element requiring the “commission of a wilful act in a wrongful manner,” “[r]elevant California authorities establish ․ that while a defendant's act of improperly instituting or maintaining an action may, in an appropriate case, give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit-even for an improper purpose-is not a proper basis for an abuse of process action.  [Citations.]” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169, 232 Cal.Rptr. 567, 728 P.2d 1202.)

Thus, while Shaw's institution of a suit against plaintiff Kappel did not satisfy the second requirement of a cause of action for abuse of process, the knowing execution of a false declaration of service by the defendants named herein can constitute the necessary “wilful act,” i.e., one which is not proper in the regular conduct of the proceeding.

Plaintiff has alleged that the process server (Fecher), (who apparently could not be found for service), acted as the agent for the other named defendants (Bartlett and Attorney Services).   Whether or not the latter named defendants can be held liable under the doctrine of respondeat superior remains a matter of proof and whether or not relevant provisions of the Business and Professions Code and Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968, 227 Cal.Rptr. 106, 719 P.2d 676 are applicable.

 There was some discussion below and in the defendant's brief on appeal of the fact that plaintiff Kappel did receive notice of the entry of default in June 1983, and wrote a letter to Shaw's counsel informing them that no effective service of process had been made upon him.  (See fn. 1, supra.)   It is argued that there was, under these circumstances, some duty upon the part of the plaintiff to take affirmative action to resolve the problem.

Such an argument was also made in Slaughter v. Legal Process & Courier Service, supra, 162 Cal.App.3d 1236, 209 Cal.Rptr. 189.   There the court, at page 1251, 209 Cal.Rptr. 189, declared, “We briefly address respondents' contention that, because appellant ignored the summons, he is responsible for any damages he may have incurred.   This argument has no merit whatsoever.   Appellant was under no duty to act upon a defectively served summons.   The requirement of notice ‘is not satisfied by actual knowledge without notification conforming to the statutory requirements' [citation];  it is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.  [Citations].”

We agree with Slaughter.   In the action on appeal, plaintiff had committed no wrong;  to the contrary, the wrong was committed against him.2

STATUTE OF LIMITATIONS

 Code of Civil Procedure section 340 provides for a one year statute of limitation for various actions alleging intentional torts, but neither malicious prosecution nor abuse of process are named therein.   Included, however, in subdivision (3) are actions “for injury to or for the death of one caused by the wrongful act or neglect of another, ․” It has been held that a cause of action for abuse of process is an injury to the person and is subject to subdivision (3).  (Simons v. Edouarde (1950) 98 Cal.App.2d 826, 221 P.2d 203;  McFaddin v. H.S. Crocker Co. (1963) 219 Cal.App.2d 585, 33 Cal.Rptr. 389.)

Plaintiff Kappel argued below, and argues here, that his cause of action against the defendants did not accrue until their conduct actually and substantially damaged him, which occurred when Shaw executed on his property on June 20, 1984.   Plaintiff filed his complaint against the defendants on June 3, 1985, less than a year after the assertedly wrongful execution.   Defendants argue that the wrongful act occurred on May 13, 1983, when Fecher made the false declaration of service.

Code of Civil Procedure section 312 provides that civil actions can only be commenced within the prescribed periods of limitation “after the cause of action shall have accrued.”   Traditionally a cause of action commences to run from the time of the wrongful act which produced injury, even though the plaintiff is ignorant of his cause of action or of the wrongdoer's identity.   (See 3 Witkin, Cal.Procedure (3d ed. 1985) Actions, § 352, p. 381.)

However, as was observed in Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 54, 210 Cal.Rptr. 781, 694 P.2d 1153, a medical malpractice case, “ ‘Wrongful act’ and ‘injury’ are not synonymous.   [Citations.]  The word ‘injury’ signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself.   [Citation.]  The date of injury could be much later than the date of the wrongful act where the plaintiff suffers no physical harm until months or years after the wrongful act.”  (Fn. omitted.)   Because often the wrongful act does not contemporaneously result in injury, but proximately causes injury later, both the courts and the Legislature have made substantial inroads upon the traditional rule, particularly in cases involving professional malpractice.   (See, e.g., Larcher v. Wanless (1976) 18 Cal.3d 646, 135 Cal.Rptr. 75, 557 P.2d 507;  Budd v. Nixen (1971) 6 Cal.3d 195, 98 Cal.Rptr. 849, 491 P.2d 433;  Code Civ.Proc., § 340.5.)   In an early case involving the purchase of insurance, the reviewing court approved deviation from the traditional rule where the wrongful act and the injury were not contemporaneous.  (See Walker v. Pacific Indemn. Co. (1960) 183 Cal.App.2d 513, 6 Cal.Rptr. 924.)

In the case at bench, the gravamen of plaintiff's cause of action was lack of legal notice and subsequent invalid legal proceedings triggered by the perjured declaration of service.   We have referred to the sound reasons of public policy for establishing deterrence of defendant Fecher's conduct.   There is no logic or fairness in holding that a plaintiff who has stated a cause of action because of lack of proper notice is then barred from suit on the grounds that the cause of action accrued and ran despite his lack of notice.

The tort of malicious prosecution provides an appropriate and closely connected analogy.   That cause of action accrues not when the prior malicious proceeding is commenced, but when it has been successfully terminated in favor of the now plaintiff.  (4 Witkin, Summary of Cal.Law (8th ed. 1973) Torts, § 257, p. 2533.)   A requisite element of any tort, of course, is injury, and the individual maliciously prosecuted cannot show injury until he has prevailed in the prior legal proceedings;  if he has not prevailed, he has not been maliciously injured.

In a cause of action for abuse of process, the mere filing of a complaint and the lack of service may not injure a defendant in any way cognizable at law.   A filed complaint could lie dormant in the clerk's office for years gathering dust.   A subsequent entry of judgment may cause injury, but none was alleged here.   Here, plaintiff pleaded allegations that he sustained actual injury only when his property became the subject of the invalid writ of execution;  the act of execution caused the asserted financial injury and plaintiff has also alleged that it caused emotional distress.

The trial courts grappling with plaintiff's causes of action ruled that plaintiff had stated insufficient facts to take his cause of action out of the statute of limitations, presumably applying the traditional rule of accrual.   However, plaintiff has pleaded that the injury of which he complains and which was proximately caused by defendants' assertedly wrongful act was not contemporaneous but occurred when his property was subjected to the writ of execution.

If plaintiff can properly plead his cause of action for abuse of process and injuries resulting from such wrongdoing, we conclude that such a cause of action is not barred by Code of Civil Procedure section 340, subdivision (3).3

Finally, we summarily dispose of defendants' contention that plaintiff has filed a frivolous appeal.4  We decline to impose sanctions in this matter for a number of reasons, but the primary reason for not doing so is because it would be inconsistent with our disposition.

DISPOSITION

 Although we hold that the superior court properly sustained the demurrer to the three causes of action as pleaded in the second amended complaint, because the possibility exists that plaintiff may be able to amend his complaint to properly plead a cause of action for abuse of process, we grant Kappel's request for the opportunity to amend.

We therefore reverse the judgment of dismissal and remand the matter to the superior court in order for it to afford plaintiff an opportunity to amend his complaint, if he can do so, to allege facts sufficient to state a cause of action for abuse of process.

Parties to bear their own costs on appeal.

L. THAXTON HANSON, Associate Justice.

SPENCER, P.J., and LUCAS, J., concur.