California Civil Jury Instructions (CACI)

1520. Abuse of Process—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] wrongfully [insert legal procedure, e.g., “took a deposition”]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [insert legal procedure, e.g., “took the deposition of [name of deponent]”];

2. That [name of defendant] intentionally used this legal procedure to [insert alleged improper purpose that procedure was not designed to achieve];

3. That [name of plaintiff] was harmed; and

4. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003

Sources and Authority

  • “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 Insurance Group (1986) 41 Cal.3d 782, 792 [226 Cal.Rptr. 90, 718 P.2d 77], internal citations omitted.)
  • This tort has been “long recognized at common law but infrequently utilized.” (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1463 [246 Cal.Rptr. 815], internal citation omitted.)
  • Restatement Second of Torts, section 682 provides: “One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.”
  • “Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place). Hence, abuse of process claims typically arise for improper or excessive attachments or improper use of discovery.” (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 40 [23 Cal.Rptr.2d 251], internal citations omitted.)

  • “The gist of the tort is the misuse of the power of the court: It is an act done under the authority of the court for the purpose of perpetrating an injustice, i.e., a perversion of the judicial process to the accomplishment of an improper purpose. Some definite act or threat not authorized by the process or aimed at an objective not legitimate in the use of the process is required. And, generally, an action lies only where the process is used to obtain an unjustifiable collateral advantage. For this reason, mere vexation [and] harassment are not recognized as objectives sufficient to give rise to the tort.” (Younger v. Solomon (1974) 38 Cal.App.3d 289, 297 [113 Cal.Rptr. 113], internal citations omitted.)
  • “Process is action taken pursuant to judicial authority. It is not action taken without reference to the power of the court.” (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 530 [3 Cal.Rptr.2d 49].)
  • “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… 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.” (Younger, supra, 38 Cal.App.3d at p. 296, internal citations omitted.)
  • “ ‘The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club.’ ” (Spellens v. Spellens (1957) 49 Cal.2d 210, 232—233 [317 P.2d 613], internal citation omitted.)
  • “[A]n improper purpose may consist in achievement of a benefit totally extraneous to or of a result not within its legitimate scope. Mere ill will against the adverse party in the proceedings does not constitute an ulterior or improper motive.” (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 876 [168 Cal.Rptr. 361], internal citations omitted.)
  • “Merely obtaining or seeking process is not enough; there must be subsequent abuse, by a misuse of the judicial process for a purpose other than that which it was intended to serve. The gist of the tort is the improper use of the process after it is issued.” (Adams, supra, 2 Cal.App.4th at pp. 530—531, internal citations omitted.)
  • “ ‘ “Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” ’ ” (Clark Equipment Co. v. Wheat (1979) 92 Cal.App.3d 503, 524 [154 Cal.Rptr. 874], internal citations omitted.)
  • Civil Code section 47 provides, in part, that a privileged publication or broadcast is one made “(b) . . . (2) in any judicial proceeding.” The privilege applies to statements that are (1) made in judicial or quasi- judicial proceedings, (2) by litigants or other participants authorized by law, (3) to achieve the objects of the litigation, and (4) that [have] some connection or logical relation to the action.” (Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
  • “[I]t is consistent with the purpose of section 47, subdivision (2) to exempt malicious prosecution while still applying the privilege to abuse of process causes of action.” (Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 824 [266 Cal.Rptr. 360].)
  • “[T]he scope of ‘publication or broadcast’ includes noncommunicative conduct like the filing of a motion for a writ of sale, the filing of assessment liens, or the filing of a mechanic’s lien. The privilege also applies to conduct or publications occurring outside the courtroom, to conduct or publications which are legally deficient for one reason or another, and even to malicious or fraudulent conduct or publications.” (O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134 [100 Cal.Rptr.2d 602], internal citations omitted.)
  • The litigation privilege can defeat an abuse-of-process claim. (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 65 [75 Cal.Rptr.2d 83].)
  • “The use of the machinery of the legal system for an ulterior motive is a classic indicia of the tort of abuse of process. However, the tort requires abuse of legal process, not just filing suit. Simply filing a lawsuit for an improper purpose is not abuse of process.” (Trear v. Sills (1999) 69 Cal.App.4th 1341, 1359 [82 Cal.Rptr.2d 281], internal citations omitted.)
  • “ ‘[T]he essence of the tort “abuse of process” lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.’ [¶]We have located no authority extending the tort of abuse of process to administrative proceedings. Application of the tort to administrative proceedings would not serve the purpose of the tort, which is to preserve the integrity of the court.” (Stolz v. Wong Communications Ltd. Partnership (1994) 25 Cal.App.4th 1811, 1822—1823 [31 Cal.Rptr.2d 229], internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 517—528

4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of Process, §§ 43.20—43.25 (Matthew Bender)

31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and Abuse of Process (Matthew Bender)

14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of Process (Matthew Bender)