Mazzaferro v. Stanaland et al

Filing 89

ORDER DENYING DEFENDANT'S MOTION TO FILE A COUNTERCLAIM 79 (Illston, Susan) (Filed on 3/5/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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RONALD MAZZAFERRO,

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Case No. C 11-4097 SI

Plaintiffs,

ORDER DENYING DEFENDANT’S
MOTION TO FILE A COUNTERCLAIM

v.
MANSUETO ANTHONY LENCI,
Defendant.

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Defendant has filed a motion for leave to file a counterclaim alleging abuse of process. The
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motion is scheduled for a hearing on March 8, 2013. Pursuant to Civil Local Rule 7-1 (B), the Court
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determines that the matter is appropriate for resolution without oral argument, and VACATES the
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hearing. For the reasons set forth below, the Court DENIES the motion.
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Defendant seeks to allege a counterclaim for abuse of process. Defendant states that the
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counterclaim arises largely out of the discovery process in this case. Defendant claims that plaintiff’s
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requests for production of documents “exhibit that he has filed this case with ulterior improper motives
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intended to cause malice by misusing the power of this court to gain an illegal advantage in other cases
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as well as this one.” Docket No. 88 at 4:1-3. Defendant also states that “Defendant is not disputing the
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requests propounded [by plaintiff] but the malice behind requesting said documents.” Id. at 5:14-15.
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“The common law tort of abuse of process arises when one uses the court’s process for a purpose
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other than that for which the process was designed.” Rusheen v. Cohen, 37 Cal.4th 1048, 1056 (2006).
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“To succeed in an action for abuse of process, a litigant must establish that the defendant (1)

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contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the

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process not proper in the regular conduct of the proceedings.” Id. at 1057.
The Court finds that granting leave to amend would be futile because, to the extent the proposed

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counterclaim is based on the filing of this lawsuit, “the mere initiation of a lawsuit, even for an improper

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purpose, does not support a claim for abuse of process.” Ramona Unified School Dist. v. Tsiknas, 135

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Cal. App. 4th 510, 520 (2005). Similarly, an allegation that plaintiff is conducting discovery with bad

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intentions is insufficient to state a claim for abuse of process. See Silver v. Gold, 211 Cal. App. 3d 17,

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24 (1989) (“[T]here is no liability where the defendant has done nothing more than carry out the process

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United States District Court
For the Northern District of California

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to its authorized conclusion, even though with bad intentions.”) (internal quotations and citation

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omitted); see also F.M. Tarbell Co. v. A & L Partners, Inc., No. CV 10–1589 PSG, 2011 WL 1153539,

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at *6. (C.D. Cal. Mar. 23, 2011) (“[T]he mere conducting of civil discovery in civil litigation cannot

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provide a basis for bringing a tort claim for abuse of process—even if Windermere alleges that Tarbell

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is conducting discovery with bad intentions.”). If defendant asserts that plaintiff seeks discovery in this

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case that is irrelevant to this case, defendant should raise this issue before Magistrate Judge Ryu,

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pursuant to the discovery letter procedures set forth in Judge Ryu’s August 7, 2012 order (Docket No.

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56).

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This order resolves Docket No. 79.

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IS SO ORDERED.
Dated: March 5, 2013
SUSAN ILLSTON
United States District Judge

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