I am seeing more cases and litigation that at least suggest that the lawsuit and claims or defenses made by one party in the lawsuit are an abuse of process. That is, although the lawsuit can be filed and prosecuted, or can be defended, a party is doing so for an improper purpose, such as to punish the other party for something that is unrelated to the claims or the defenses made, or to teach the other party a lesson or to bully the other party unrelated to the claims or defenses made, or sometimes simply to use the court and legal processes to gain a “win” against the other party unrelated or in part unrelated to the claims or defenses made.
What about proposing terms of settlement or partial terms of settlement that are different or are in part different than the claims or defenses made in the case – certainly it is or it can be appropriate to propose terms of settlement that in part are different or that are more broad or expansive than the claims or defenses in the direct case and perhaps doing so it might be instrumental in arriving at a global settlement and a release of all claims and possible claims known and unknown (and indeed the majority of settlements do globally include and cover all actual and possible claims that are known and unknown); however, I have also seen cases where a party was using the litigation and their proposed terms of settlement or their refusal to settle in an effort to extort additional money or other concessions from the other party unrelated to the claims or defenses – sometimes it depends on the facts and circumstances of the case, and the situation, and the claims and defenses that have actually been made. Further, instead of a global settlement on all of the issues and possible issues that exist or that may exist between the parties, another option can be to settle only the claims and defenses that are actually made (the pleadings in the case do frame the claims and defenses that are at issue in the case and that will be adjudicated at trial), or to settle only some of the claims and defenses that are actually made and to litigate the other remaining claims and defenses at a trial – thus, in other words, settlement is not required or limited to globally covering all actual and possible claims that are known and unknown.
Sometimes the abuse of process by a party is prompted or initiated or caused or brought about by the abusing party’s personality, or sometimes in part by the prior relationship between the parties and unrelated to the claims or defenses made.
The same personality or personalities that existed prior to the litigation also exist or tend to exist in the litigation, although litigation can bring out and exacerbate personality traits, qualities or characteristics, and even dysfunction.
The following is my personality and relationship scale. As the scale moves to the right the personality or relationship becomes more troubling, dysfunctional and damaging to other people – you need to protect yourself, be prudent out there, and avoid or get out of or stay away from some personalities and relationships:
The following is California Civil Jury Instruction (CACI) 1520 stating the essential factual elements that are required be shown to establish a claim for abuse of process:
California Civil Jury Instruction (CACI) 1520-Abuse of Process – Essential Factual Elements
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[Name of plaintiff] claims that [name of defendant] wrongfully [insert legal procedure, e.g., “took a deposition”]. To establish this claim, [name of plaintiff] must prove all of the following:
1.That [name of defendant] [insert legal procedure, e.g., “took the deposition of [name of deponent]”];
2. That [name of defendant] intentionally used this legal procedure to [insert alleged improper purpose that procedure was not designed to achieve];
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
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Best to you, David Tate, Esq.
Please reach out on this topic or on other topics if you wish.
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Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.
David Tate, Esq. (and inactive CPA)
Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.
Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.
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Trials.
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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.
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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.
David Tate, Esq. Headlines (and inactive CPA) – Trust, estate, probate and elder abuse disputes, litigation and contentious administrations; business litigation and internal and co-owner business disputes, litigation, and governance; real property and co-owner disputes and litigation; mediator and dispute resolution services; and social and digital media for law, people, businesses and legal risk management. 