RE: Abuse of process laws (CA)...

[legalschnook]

RE: Abuse of process laws (CA)...

Hello.

We have a real nutcase in our condo complex that is threatening to sue if he doesn't get his way on a parking issue. His view has no merit and the parking has existed as is for about 15 years with no incident.

Now this guy moves in and he has been harassing one of the neighbors about his parking. The nutball is from South Africa and the guy he's attacking is black. I can't say for sure that the nutball is racist but others park in the spot & he never says a thing!... Just when the black sheriff does.

The sheriff is scared to do anything because he doesn't want the negative PR. and he's taking the high road.

The nutball has a restraining order against him from the sheriff. Trust me this nutball is a "monkey with car keys!".

Anyway, I am wondering what the qualifiers are for an abuse of process case in Calif. & can we ask for punitive damages based on malace?

I just need to have a counter so we can get this guy off our backs & live in peace again.

Please advise.

Cheers!
email: [email protected]

 

[stephenk]

who are you in regard to this issue between the nutcase and the sheriff?

 

[CdwJava]

I don't see anything criminal occuring based on what you have posted. So there is nothing that the sheriff CAN do about the situation.

And who is this restraining order supposed to protect? The guy vying for the parking space? And a court issues a restraining order - not the sheriff. So unless a judge said that this guy shall not harass or come within a certain distance of the other guy, the alleged R/O is a non-issue. Plus, in many jurisdictions in CA law enforcement will not arrest for violations of a civil restraining order - they usually forward the case to the DA and see if the DA wants to file.

Parking within an apartment complex is regulated by the management - with few exceptions (such as handicapped parking, fire lanes, etc.). It is not the place of law enforcement to get in the middle of a civil dispute that SHOULD be handled by the management.

Unless credible threats of violence are being made, or someone is challenging another person to fight in a public place, this is not a police issue.

The manager of the complex should handle the matter. If they don't, then some action might be able to be taken against the management ... but that would be in civil court and would take an attorney.

- Carl

 

[OC3902]

Anyway, I am wondering what the qualifiers are for an abuse of process case in Calif. & can we ask for punitive damages based on malace?

I just need to have a counter so we can get this guy off our backs & live in peace again.

The elements of a civil action for abuse of process are: 1) an ulterior motive in using the process, and 2) a wilful act in the use of the process not proper in the regular conduct of the proceeding. Cantu v. Resolution Trust Proceeding (1992) 4 Cal.App.4th 857 (http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/4/857.html); Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461 (http://login.findlaw.com/scripts/callaw?dest=ca/cal2d/69/461.html). Available grounds for punitive damages are malice and oppression under California Civil Code section 3294 (http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=civ&codebody=&hits=20). Malice can be inferred from defendant's conduct to make a case for punitive damages. Templeton Feed & Grain v. Ralston Purina Co., 69 Cal.2d 461. An example of abuse of process can be seen in (Spellens v. Spellens, 49 Cal.2d 210, at page 230 (too long to explain) - http://login.findlaw.com/scripts/callaw?dest=ca/cal2d/49/210.html). According to the Court of Appeal in Cantu v. Resolution Trust Proceeding (1992) 4 Cal.App.4th 857, "merely filing or maintaining a lawsuit is not a proper basis for an abuse of process claim." See also Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796 (http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/217/796.html). I don't believe abuse of process actions are so common in CA. There is a similar civil claim called malicious prosecution but one of requirements is termination of the prior action (his action) in your favor.

 

[aarennels]

ABUSE of PROCESS in NEVADA

If other side filed a counter motion and used "part of" a paragraph of an "agreement" between the parties to collect attorney fees -- when the "fully stated" paragraph would make it clear that --- other side "could not" collect attorney fees. . .

Is this considered "abuse of process"?

The reason we were in Court was to "Modify" the "agreement" ---
Other side brought up "other issues" in their "counter-motion" (that i can argue did nothing to resolve the Motion to modify the "agreement".)

Omitting the first two sentences "part of" the paragraph --- allowed them to collect $$ from me.

[My "new" attorney seemed unprepared, didn't care or unwilling to argue with opposing counsel on this matter and on every issue opposing side brought up -- all of which were in violation of our "agreement."] -- I will file a complaint or "motion" --- this is but "one" issue.

 

[CourtClerk]

If other side filed a counter motion and used "part of" a paragraph of an "agreement" between the parties to collect attorney fees -- when the "fully stated" paragraph would make it clear that --- other side "could not" collect attorney fees. . .

Is this considered "abuse of process"?

The reason we were in Court was to "Modify" the "agreement" ---
Other side brought up "other issues" in their "counter-motion" (that i can argue did nothing to resolve the Motion to modify the "agreement".)

Omitting the first two sentences "part of" the paragraph --- allowed them to collect $$ from me.

[My "new" attorney seemed unprepared, didn't care or unwilling to argue with opposing counsel on this matter and on every issue opposing side brought up -- all of which were in violation of our "agreement."] -- I will file a complaint or "motion" --- this is but "one" issue.

Why are you posting to a 3 year old thread????

 

[quincy]

And what does this have to do with defamation?