855 F2d 862 Ross v. Union Oil Company of California

855 F.2d 862

Unpublished Disposition

Richard ROSS, Plaintiff-Appellant,
v.
UNION OIL COMPANY OF CALIFORNIA, dba Unocal, a California
Corporation, Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 87-3819.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 1988.
Decided Aug. 9, 1988.

3

Before GOODWIN, Chief Judge, ALARCON, Circuit Judge, and A. WALLACE TASHIMA**, District Judge.

4

MEMORANDUM*

5

Plaintiff Richard Ross, a gasoline dealer for Union Oil Company of California (Unocal), appeals the summary judgment in favor of Unocal on his claims for abuse of process, defamation and intentional infliction of emotional distress.

6

The plaintiff's action arose out of a conflict between Unocal and certain Unocal dealers operating in the Pacific Northwest. In early 1986, a number of Unocal dealers organized the Unocal Dealer's Legal Trust Committee (Committee), which was intended to resolve problems between the dealers and Unocal. Unocal does not recognize the Committee as a legitimate bargaining authority.

7

In late April 1986, some dealers picketed Unocal's Portland terminal, complaining of unfair pricing. Unocal claims that a new dealer who did not belong to the Committee told Unocal officials that he had been threatened with violence unless he joined the picketing and that the plaintiff had made this threat. In May 1986, a Committee member allegedly told Unocal officials that the dealers were angry and that violence was possible, but that the possibility of violence would be reduced if Unocal worked through the Committee.

8

On June 4, 1986, Unocal's assistant counsel sent the two letters that constitute the basis for this suit. One letter was sent to the Multnomah County district attorney. It requested the district attorney to investigate Ross and other Committee members "to ensure that the violence they have suggested does not in fact occur." The letter alleged that the plaintiff had told an unidentified dealer that there was a "possibility" of violence to the dealer and his family if he did not participate in the picketing. It also stated that the plaintiff had told certain Unocal employees that he had surreptitiously tape-recorded statements made by Unocal's northwest division sales manager and its retail representative. If true, this could violate a criminal statute. The other letter was sent to David Shannon, a Portland attorney who had previously represented the plaintiff. The letter stated that the plaintiff had threatened a new dealer "with violence to himself and his family if he did not participate in the picketing operation" and that Unocal had filed a complaint with the district attorney's office.

9

On June 5, 1986, the dealers met with Unocal. At that meeting, Unocal officials told the dealers about the two letters sent by Unocal on June 4. According to the district court, "[t]his was apparently intended to be a scare tactic," although "Unocal contend[ed] that the letters were no more than a " 'legitimate "hardball" business effort.' "

10

The plaintiff sued Unocal on July 15, 1986, seeking damages for abuse of process, defamation and intentional infliction of emotional distress. The district court granted Unocal summary judgment on all three claims. This appeal followed.

11

The plaintiff claims first that Unocal's letter to the district attorney constituted abuse of process. The district court rejected the plaintiff's argument, finding that no action for abuse of process may be maintained where there has been no actual use of process by a court or by some official enforcement agency. We agree.

12

The gravamen of the tort of abuse of process is not "the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings" but the "subsequent misuse of the process, though properly obtained." Restatement (Second) of Torts Sec. 682, comment a. See Blue Goose Growers, Inc. v. Yuma Groves, Inc., 641 F.2d 695, 696-97 (9th Cir.1981) (per curiam) (finding that, under Arizona law, neither the threat nor the initiation of a lawsuit in itself will support a claim for abuse of process); Blue Dolphin, Inc. v. United States, 666 F.Supp. 1538, 1541 (S.D.Fla.1987) (stating that "[a]n abuse of process claim is proper only when the action results in issuance of some form of process from the Court "); Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413, 415 (1943) (stating that "abuse of civil process is concerned with a perversion of a process after it is issued"). Oregon courts have accepted the common law definition. See Larsen v. Credit Bureau, Inc. of Georgia, 279 Or. 405, 568 P.2d 657, 658 (1977) (stating that "[a]buse of process is 'the perversion of legal procedure to accomplish an ulterior purpose when the procedure is commenced in proper form and with probable cause' ") (quoting Kelly v. McBarron, 258 Or. 149, 154, 482 P.2d 187, 190 (1971)). We therefore affirm the district court's grant of summary judgment against the plaintiff on his claim for abuse of process.

13

The plaintiff next argues that the district court erred in finding that the letter to Shannon was absolutely privileged and that Unocal therefore was entitled to summary judgment on his defamation claim.

14

He argues first that Shannon was not actually his attorney and that the issue whether Unocal believed in good faith that Shannon was his attorney presents a question of fact unsuitable for disposition through summary judgment. The argument has no merit. Unocal officials knew that Shannon had represented the plaintiff and the Committee in prior dealings with Unocal. In February 1986, Unocal received a letter signed by the plaintiff and written on Shannon's stationery. In March or April of 1986, the plaintiff allegedly told a Unocal official that Shannon was his attorney. The plaintiff has pointed to no "specific facts" that "are such that a rational or reasonable jury might return a verdict" that Unocal lacked a good faith belief that Shannon represented the plaintiff.1 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 631 (9th Cir.1987). The district court therefore was correct in finding as a matter of law that Unocal officials had a good faith belief that Shannon was the plaintiff's attorney.

15

The plaintiff argues next that "the statement in the present case was [not] sufficiently related to the subject of the [anticipated] litigation to be absolutely privileged." Chard v. Galton, 277 Or. 109, 559 P.2d 1280, 1283 (1977); see Troutman v. Erlandson, 286 Or. 3, 593 P.2d 793, 795 (1979) (holding that the privilege extends to statements made where litigation is anticipated but not yet pending). The privilege "embraces anything that may possibly be pertinent." Strycker v. Levell, 183 Or. 59, 190 P.2d 922, 925 (1948) (quoting McKinney v. Cooper, 163 Or. 512, 519, 98 P.2d 711, 713 (1940)). Furthermore, "[a]ll doubt should be resolved in favor of [the statement's] relevancy or pertinency." Chard, 277 Or. 109, 559 P.2d at 1282 (quoting Irwin v. Ashurst, 158 Or. 61, 70, 74 P.2d 1127, 1131 (1938)). It is not relevant whether the defendant in making such statements was actuated by good or bad motives. See McKinney, 163 Or. 512, 98 P.2d at 713.

16

Under this very broad standard, we agree with the district court that Unocal's statement was sufficiently related to the subject matter of the incipient litigation to be privileged. As the district court observed, "[t]he Committee and its activities, which included the possibility of litigation, were well established" at the time the letter was written, and "Unocal's policies provoked both the civil litigation and the threats of violence." We therefore affirm the district court's grant of summary judgment to Unocal on the plaintiff's defamation claim on the ground that the letter to Shannon was absolutely privileged.

17

The plaintiff also argues that the district court improperly granted summary judgment to Unocal on his claim for intentional infliction of emotional distress arising from the two letters. The district court granted summary judgment because the "defendant's acts [did not] consist[ ] of 'some extraordinary transgression of the bounds of socially tolerable conduct.' " Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 733 P.2d 430, 436 (1987) (quoting Patton v. J.C. Penney Co. Inc., 301 Or. 117, 122, 719 P.2d 854, 857 (1986)).

18

We need not reach the question whether the district court correctly applied Oregon law to define what is "socially tolerable." An Oregon appellate court has held, subsequent to the district court's opinion, that the absolute privilege afforded to attorneys in defamation actions "also appl[ies] in claims for intentional infliction of emotional distress based on actions taken and statements made in connection with a judicial proceeding." Franson v. Radich, 84 Or.App. 715, 735 P.2d 632, 634-35 (1987).

19

Because the letter to Shannon was absolutely privileged in the context of the defamation action, the plaintiff may not maintain a claim for intentional infliction of emotional distress based upon the same letter. Similarly, the plaintiff may not maintain a claim for intentional infliction of emotional distress based upon Unocal's letter to the district attorney because " '[f]ormal or informal complaints to a prosecuting attorney ... concerning violations of the criminal law are absolutely privileged.' " Ducosin v. Mott, 292 Or. 764, 642 P.2d 1168, 1171 (1982) (quoting Restatement of Torts (Second) Sec. 598, comment e). If an action will not lie for defamation, none will lie for emotional distress allegedly caused by the defamation in a privileged writing. We therefore affirm the district court's grant of summary judgment to Unocal on the defendant's claim for intentional infliction of emotional distress.

20

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

**

The Honorable A. Wallace Tashima, United States District Judge, Central District of California, sitting by designation

1

The plaintiff, despite our order to supplement the record, has failed to provide us with a copy of Shannon's affidavit, which he claimed in his brief demonstrated the existence of a genuine issue of fact