Chamat v. Latham & Watkins CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. 37-2011-00078536-CU-MC-SC
- Trial judge
- William S. Cannon
- Outcome
- affirmed — Affirmed.
- Area
- civil
- Panel
- Gilbert Nares (author), McINTYRE, Cynthia Aaron
Analysis
The trial court sustained Latham & Watkins' demurrer to Chamat's abuse of process claim without leave to amend, ruling that engaging in lawful discovery does not constitute abuse of process. The Court of Appeal affirmed the judgment, agreeing that Chamat failed to allege an ulterior motive or a willful act in a wrongful manner.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sustaining demurrer to abuse of process claim without leave to amend“Engaging in discovery as authorized by law does not give rise to a claim for abuse of process. (State Farm Mutual Augomobile Ins. Co. v. Lee, supra, 193 Cal.App.4th at p. 40.)” | de novo | correct | agree with court The appellate court correctly applied the standard for abuse of process, which requires an ulterior motive and a willful act in a wrongful manner. Since the complaint only alleged lawful discovery, the demurrer was properly sustained. |
Authorities
- relied: State Farm Mutual Automobile Ins. Co. v. Lee (2011) 193 Cal.App.4th 34 — No abuse of process where plaintiff engaged in discovery as authorized by law even if he had an ulterior motive.
- relied: Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782 — No abuse of process where defendant filed a meritless appeal solely for the benefit of delay or to coerce the plaintiff into settling because appealing from the judgment was authorized by law.
- relied: Spellens v. Spellens (1957) 49 Cal.2d 210 — Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the process, is required for liability.
- relied: Blank v. Kirwan (1985) 39 Cal.3d 311 — A demurrer will be sustained when, accepting plaintiff's allegations as true, there is no liability as a matter of law.
- relied: Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857 — The complaint should be read as containing the judicially noticeable facts, 'even when the pleading contains an express allegation to the contrary.'
The appellate opinion: sound — The opinion correctly identifies the elements of abuse of process and applies them to the complaint's allegations. It relies on binding authority to conclude that lawful discovery cannot support such a claim.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court sustained without leave to amend Latham & Watkins's demurrer to Mauricio Chamat's sole cause of action for abuse of process, which sought a share of a $10.3 million judgment based on Latham's use of his deposition testimony and work papers as a percipient third-party witness, reasoning that engaging in discovery authorized by law is not an abuse of process. The Court of Appeal affirmed, holding de novo that the complaint alleged only lawful discovery and no improper purpose, and declined to reach Latham's statute of limitations argument.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sustaining demurrer to the abuse of process cause of action because Latham's deposition and trial subpoenas were discovery authorized by the Code of Civil Procedure and the complaint alleged no ulterior purpose or wrongful act“Engaging in discovery as authorized by law does not give rise to a claim for abuse of process.” | de novo | correct | agree with court Abuse of process requires an ulterior motive and a willful act in a wrongful manner not authorized by the process (Spellens; Coleman). Issuing deposition and trial subpoenas and moving to compel are statutorily authorized acts carried out to their intended conclusion; the complaint alleged no collateral extortionate purpose, so the claim fails as a matter of law. State Farm v. Lee directly supports that lawful discovery is not abuse of process. |
Denial of leave to amend the abuse of process claim“Accordingly, the court did not err in sustaining Latham's demurrer without leave to amend.” | unclear | correct | unsure The opinion does not separately analyze whether there was a reasonable possibility the defect could be cured by amendment, nor does it state the abuse of discretion standard that governs denial of leave to amend. The result is likely defensible because the underlying conduct (lawful subpoenas and discovery) cannot be repleaded into an abuse of process, and Chamat does not appear to have argued leave to amend on appeal, but the court's silence leaves the point unaddressed. |
Trial court's finding that Chamat, having been deposed as a percipient witness and never designated as an expert, was entitled only to statutory witness fees and transportation costs“[was] not entitled to any compensation beyond the statutory witness fees and transportation costs.” | unclear | not reached | unsure The appellate court affirmed solely on the ground that the complaint alleged no improper purpose, and did not independently evaluate the trial court's expert-versus-percipient-witness reasoning or Chamat's six specific contentions about ownership of work papers and alleged misrepresentations. The trial court's reasoning is consistent with the general rule that percipient witnesses receive statutory fees, but the opinion does not develop it. |
Authorities
- relied: Blank v. Kirwan (1985) 39 Cal.3d 311 — On demurrer, the court accepts properly pleaded facts as true and gives the complaint a reasonable interpretation but does not assume the truth of contentions, deductions, or conclusions of fact or law.
- relied: Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857 — A complaint is read as containing judicially noticeable facts even when it contains an express allegation to the contrary.
- relied: State Farm Mutual Automobile Ins. Co. v. Lee (2011) 193 Cal.App.4th 34 — Abuse of process requires an ulterior motive and a willful wrongful act; engaging in discovery authorized by law is not abuse of process even if accompanied by an ulterior motive.
- relied: Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782 — Filing a meritless appeal solely for delay or to coerce settlement is not abuse of process because appealing is authorized by law.
- relied: Spellens v. Spellens (1957) 49 Cal.2d 210 — Abuse of process requires a definite act or threat not authorized by the process or aimed at an illegitimate objective, typically a form of extortion; there is no liability for merely carrying the process to its authorized conclusion even with bad intentions.
The appellate opinion: sound with gaps — The court correctly states the elements of abuse of process from Spellens, Coleman, and State Farm v. Lee and properly concludes that subpoenaing and deposing a third-party witness and moving to compel are authorized uses of process, so a complaint seeking a share of the judgment for such testimony fails as a matter of law. The opinion, however, does not separately address the denial of leave to amend under the abuse of discretion standard, does not engage individually with Chamat's six enumerated contentions, and contains a minor inconsistency in stating that Chamat sued Precision when the defendant is Latham.
Opinion
Filed 5/17/13 Chamat v. Latham & Watkins CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MAURICIO CHAMAT, D061201
Plaintiff and Appellant, v. (Super. Ct. No. 37-2011-00078536- CU-MC-SC) LATHAM & WATKINS LLP, Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, William S.
Cannon, Judge. Affirmed.
Mauricio Chamat, in pro. per., for Plaintiff and Appellant.
Latham & Watkins and Robert J. Ellison for Defendant and Respondent.
Defendant Latham & Watkins LLP (Latham) deposed plaintiff Mauricio Chamat as a third party witness on behalf of its client Precision Development, LLC (Precision) in an accounting and real estate action filed by Precision against Yuri and Natalia Plyam (the Pylams) in the Superior Court of Los Angeles County. Judgment was entered in favor of Precision and against the Pylams in the amount of $10.3 million. In this action, Chamat sues Precision for "abuse of process" seeking, based upon his deposition testimony, a share of Precision's $10.3 million judgment. Precision demurred to the complaint, and the court sustained the demurrer without leave to amend, finding that because Chamat was deposed as a percipient witness, he was not entitled to any compensation for his deposition testimony.
On appeal, Chamat, again acting in propria person, asserts (1) he has ownership rights in his work papers; (2) owed no duty to Precision in the underlying action; (3)
Latham misrepresented that he was a servant of Latham in the underlying case; (4)
Latham misrepresented that he performed accounting services instead of an audit; (5)
Latham admitted that misrepresentation in court; and (6) the legal standard for sustaining a demurrer was not met. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. March 2009 Subpoena and Deposition Before the underlying litigation between Precision and the Pylams was instituted, Chamat performed an audit of the books and records of Castle Trading, a company owned by the Pylams. In March 2009 Precision issued a deposition subpoena for Chamat to appear for a deposition and to produce certain documents in his possession. At the deposition, a Latham employee copied the documents Chamat produced and returned them to Chamat.
At his March 2009 deposition, Chamat refused to answer questions and refused to produce certain documents related to the 2004 and 2005 Castle Trading audits. Precision brought a motion to compel and the court granted the motion, ordering Chamat to (1) pay 2 sanctions for his refusal to answer and to produce documents, (2) appear for a deposition to answer questions he previously refused to answer, and (3) produce documents he previously refused to produce.
B. 2010 Trial Subpoena Trial was originally scheduled for June 2010. Precision subpoenaed Chamat to appear and testify at trial, but Chamat communicated his intent to refuse to testify.
Precision then sought a bench warrant to compel Chamat's attendance at trial.
In February 2010 Precision reached an agreement with Chamat, with Precision agreeing to withdraw its motion seeking a bench warrant and to not collect the sanctions imposed by the court, in exchange for Chamat's agreement to appear and testify at trial.
The June 2010 trial was then postponed to March 2011.
C. 2011 Trial Subpoena In February 2011 Precision subpoenaed Chamat to appear on March 21, 2011, as a trial witness. Latham thereafter advised Chamat that instead of appearing specifically on March 21, 2011, he would be on call. Ultimately, Chamat was not called to testify at trial.
D. Procedural Background In August 2011 Chamat filed his first amended complaint (the operative pleading in this action) against Latham. In that complaint Chamat sought a proportionate share of the $10.3 million judgment obtained by Precision based upon Latham's alleged use of his work papers and deposition testimony in that action. He nevertheless contends in the 3 complaint that he should have been retained and paid as an expert and that, by not doing so, Latham committed abuse of process.
On October 11, 2011, Latham filed a demurrer to Chamat's complaint. On November 18, 2011, the trial court sustained without leave to amend Latham's demurrer to Chamat's sole cause of action for abuse of process. The court further explained that Latham "merely sought to obtain information" from Chamat as authorized by the Code of Civil Procedure. The court also stated that "[e]ngaging in discovery as authorized by law does not give rise to a claim for abuse of process."
The court further explained that Chamat's contention that he was an "expert"
witness "is based on a misunderstanding of the term as it is used in the discovery context." The court found that Chamat was never designated as an expert by any party in the Precision action, but was deposed as a percipient witness and therefore "[was] not entitled to any compensation beyond the statutory witness fees and transportation costs."
DISCUSSION
I. STANDARD OF REVIEW
A demurrer will be sustained when, accepting plaintiff's allegations as true, there is no liability as a matter of law. (See Code Civ. Proc., § 430.10(e); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) While courts give the complaint a "reasonable interpretation," they do not assume the truth of "contentions, deductions or conclusions of fact or law." (Blank, at p. 318.) In addition, "[t]he complaint should be read as containing the judicially noticeable facts, 'even when the pleading contains an express 4 allegation to the contrary.'" (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877.)
II. ANALYSIS
A defendant may be subject to liability for abuse of process only if he or she "(1)
entertained an ulterior motive in using the [judicial process], and (2) committed a willful act in a wrongful manner." (State Farm Mutual Automobile Ins. Co. v. Lee (2011) 193 Cal.App.4th 34, 40 [no abuse of process where plaintiff engaged in discovery as authorized by law even if he had an ulterior motive]; Coleman v. Gulf Ins. Group (1986)
41 Cal.3d 782, 792 [no abuse of process where defendant filed a meritless appeal solely for the benefit of delay or to coerce the plaintiff into settling because appealing from the judgment was authorized by law].)
"'Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in 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. 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. There is, in other words, a form of extortion.'" (Spellens v. Spellens (1957) 49 Cal.2d 210, 232, italics omitted.) "'The purpose for which the process is used, once it is issued, is the only thing of importance.'" (Ibid.)
Nowhere in the complaint does Chamat allege that Latham had an improper purpose in undertaking any of the lawful acts he identifies. Chamat's complaint only 5 asserts Latham engaged in discovery allowed by the law. Accordingly, the court did not err in sustaining Latham's demurrer without leave to amend. Engaging in discovery as authorized by law does not give rise to a claim for abuse of process. (State Farm Mutual Augomobile Ins. Co. v. Lee, supra, 193 Cal.App.4th at p. 40.)1
DISPOSITION
The judgment is affirmed. Latham shall recover its costs on appeal.
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
1 Based on our holding, we need not address Latham's contention that Chamat's action is barred by the statute of limitations. 6
Cites, in this corpus
- State Farm Mutual Automobile Insurance v. Lee No. C062380 · 2011-01-31
- Cantu v. Resolution Trust Corp. B057053 · 1992-03-17
- Coleman v. Gulf Insurance Group L.A. 31916 · 1986-05-22
- Blank v. Kirwan L.A. 32012 · 1985-08-01
- Spellens v. Spellens Docket Nos. L.A. 23683, 22553, 23135, 23180, 23685, 23717, 23684 · 1957-10-30