Kinnamon v. Staitman & Snyder , 136 Cal. Rptr. 321 ( 1977 )

Opinion

THOMPSON, J.

In the case at bench, we consider the legal sufficiency of a complaint to state a cause of action for intentional infliction of emotional distress, We conclude that allegations that a lawyer in violation of rule 7-104 of the California Rules of Professional Conduct threatened plaintiff with criminal prosecution to obtain an advantage in a civil case, that the threat was made with the intent of inflicting emotional distress, and that severe emotional distress resulted, are legally sufficient. Accordingly, we reverse a judgment of dismissal entered after a demurrer to a complaint containing those allegations was sustained without leave to amend.

Appellant filed her first amended complaint alleging that: (1) defendants Bernard Snyder, Jack Staitman, and Jack J. Tannenbaum are attorneys at law retained by defendant John B. O’Cana; (2) to collect a $250 check which plaintiff had given to O’Cana which had been dishonored for insufficient funds, the attorney defendants sent a letter to plaintiff stating, “As you may be aware to issue a check with insufficient funds to cover said check is a misdemeanor. In addition to any Civil remedies my client may have, we also plan to exercise our rights to file a criminal complaint against you for your action herein;” (3) with intent to “injure, frighten and emotionally distress” plaintiff defendants failed to inform her in their letter that fraudulent intent was an element of the crime of issuing a check with insufficient funds; (4) plaintiff suffered emotional distress and physical illness as a result of the letter; and (5) the letter was sent with the knowledge that the threats contained in it were illegal and unethical, with knowledge that the statements were untrue, would cause emotional distress, and were intended to do so; (6) the statements in the letter were made to secure payment of the obligation represented by the check; and (7) plaintiff believed the check to be good when she issued it.

Defendants’ general demurrer to the first amended complaint was sustained without leave to amend. This appeal from the resulting judgment of dismissal followed.

The trial court erred in its ruling. The complaint contains allegations which, if true, support a cause of action for intentional infliction of emotional distress.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suifering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. [Citations.] Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that defendants’ conduct was unprivileged. [Citations.]” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394 [89 Cal.Rptr. 78, 47 A.L.R.3d 286].)

Here the first amended complaint alleges outrageous conduct on the part of the attorney defendants acting as agents of defendant O’Cana. Rule 7-104 of the California Rules of Professional Conduct states in pertinent part: “A member of the State Bar shall not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil action ....” Thus, the conduct charged in the complaint is of such an extreme nature as to be “outrageous.” (See Anno., Debt Collection — Emotional Distress, 46 A.L.R.3d 772, 780-781; see also Libarian v. State Bar (1952) 38 Cal.2d 328 [239 P.2d 865]; Bowden v. Spiegel, Inc. (1950) 96 Cal.App.2d 793 [216 P.2d 571].)

Here the first amended complaint alleges defendants’ intention of causing emotional distress, plaintiff’s suffering such emotional distress that she became physically ill, and proximate cause.

There remains only the question of whether the first amended complaint discloses that the communication from defendants to plaintiff was privileged.

Citing Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573 [131 Cal.Rptr. 592], defendants argue that it does. In Lerette, counsel in the course of his representation of a client directed a letter to the chairman of the board of a bank stating that, absent a settlement, the bank would be sued for violation of the federal and state securities law because the bank’s president had misrepresented the financial situation of a person to whom the lawyer’s client had extended credit. The Court of Appeal held that the communication was a publication unqualifiedly privileged by Civil Code section 47, subdivision 2, as made in the course of a judicial proceeding and hence could not be the basis for an action in defamation instituted by the bank president. (60 Cal.App.3d at pp. 576-578.) The court held, also, that on the facts there present the privilege applied to defeat a cause of action for intentional infliction of emotional distress because “To allow [the bank president] to proceed with this cause of action would substantially defeat the purpose of the privilege ...(60 Cal.App.3d atp. 579.)

Here the situation is materially different from that presented in Lerette. Allowing the instant action for intentional infliction of emotional distress does not defeat the purpose of the privilege afforded to communications in the course of litigation by subdivision 2 of Civil Code section 47. The threat by an attorney to present criminal charges in order to obtain an advantage in a civil action is one which the Rules of Professional Conduct proscribe. (Rule 7-104, supra.) The threat thus cannot serve the purpose of litigation. It is a cause for discipline of the attorney (Libarian v. State Bar, supra, 38 Cal.2d 328; see also In re Sadicoff (1929) 208 Cal. 555 [282 P. 952]), a proposition totally inconsistent with a privileged status.

We thus conclude that no privilege insulates defendants from liability in the case at bench.

The judgment is reversed.

Lillie, Acting P. J., concurred.