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Nature and Elements of Action-In General

Abuse of process is the use of legal procedure for achieving an unlawful purpose.  This includes the misuse of the public right of access to the Courts such as causing a summons, writ, warrant, mandate, or any other process to be issued from a court to accomplish a wrongful purpose.  Any one using a civil or criminal legal process against another to accomplish a purpose for which it is not designed shall be held liable for the harm caused to the other.

The following elements constitute the intentional tort of abuse of process.

  • The malicious and deliberate misuse or of regularly issued civil or criminal court process that is not justified by the underlying legal action.
  • The abuser of process is interested only in accomplishing some improper purpose similar to the proper object of the process.

A wrongful use of processes such as attachment of property, unjustified arrest, subpoenas to testify, executions on property, unfounded criminal prosecution, and garnishee orders are considered as abuse of process.

In Drum v. Bleau, Fox & Associates, 107 Cal. App. 4th 1009 (Cal. App. 2d Dist. 2003), defendants represented a client in a legal malpractice action against plaintiff.  Judgment was entered in favor of the client, but was stayed.  Defendants obtained an execution order from the Court while the stay was in effect.  As part of execution, all funds in the plaintiff’s accounts were frozen because of the levy.  It was argued by the plaintiff that the defendant purposefully violated the stay for harming him and with the intention to deprive him of his property and legal rights.  The court contended that the defendants were liable for abuse of process and reversed the judgment.

Inside Nature and Elements of Action-In General