General Requisites

Abuse of process is defined as the use of civil or criminal processes [i] against another to accomplish a purpose for which the process was not designed[ii].  A person who uses a legal process to fulfill a purpose for which it was not meant,  can be found liable for the harm caused by such abuse of process.

Elements of  abuse of process are:

  • improper use of the court’s process;
  • ulterior or improper motive of the defendant in exercising such illegal use of process;
  • damage to the plaintiff resulted from such abuse of process[iii].

In Thomas v. Marion County [iv], both a father and his son had the same first and last names.  The son gave an insufficient fund check to a merchant, and the merchant filed a complaint with the county prosecutor.  The father made restitution to the merchant, and the merchant advised the prosecutor of the restitution.

However, the prosecutor obtained a summons ordering the son to appear in the court. The court clerk mistakenly issued a warrant in the father’s name when the summons went unanswered and the father was arrested and jailed.  The father sued the county and the merchant for negligence, false arrest and abuse of process.  The court observed that the merchant and the county were not answerable in tort for an act committed by the court clerk.  The arresting officer and the county were protected against liability, as the officer was simply executing a judicial order.

[i] Tranchina v. Arcinas, 78 Cal. App. 2d 522 (Cal. App. 1947)

[ii] Drum v. Bleau, Fox & Associates, 107 Cal. App. 4th 1009 (Cal. App. 2d Dist. 2003)

[iii] Callaway v. Parkwood Village, LLC, 2000 OK 24 (Okla. 2000)

[iv] 652 N.W.2d 183 (Iowa 2002)


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