Opinion
As Modified on Denial of Rehearing Dec. 12, 1966.
For Opinion on Hearing, see 58 Cal.Rptr. 105, 426 P.2d 505. Holt, Macomber & Rhoades and Higgs, Fletcher & Mack, Vincent E. Whelan and Edward M. Wright, San Diego, for plaintiff and appellant.
McInnis, Focht & Fitzgerald and John W. McInnis, San Diego, for defendant and respondent.
OPINION
Assigned by the Chairman of the Judicial Council.
Plaintiff, Tu-Vu Drive-In Corporation, appeals from the judgment of dismissal entered after the trial court sustained a demurrer without leave to amend, on the ground that the stated causes of action were barred by the statute of limitations (Code Civ.Proc. § 340), and from an order denying plaintiff's motion to permit further amendment.
In an action to which appellant was not a party, the respondent herein, an attorney, secured a writ of execution and wrongfully caused the same to be levied on property belonging to appellant who ultimately secured its release through judgment in its favor on a third party claim, which judgment became final on December 22, 1962.
On January 8, 1963, appellant filed an action against defendant seeking damages alleged to have been suffered on account of the wrongful levy of execution. On November 7, 1963, respondent was served with a copy of the summons and complaint therein. On November 15, 1963, appellant, by letter, granted respondent an open extension of time in which to answer. On April 10, 1964, respondent, instead of answering, successfully moved to quash service of summons. The instant action, also for damages for the wrongful levy of execution, was filed on June 8, 1964. It is alleged in the complaint that had it not been induced to delay by respondent's request for an extension of time in which to answer the former action, and had it known that respondent intended to move to quash summons in the earlier action it would have filed the present action before December 22, 1963, which would have been within one The primary issue here is whether the amended complaint shows on its face that it could or could not be amended to state a cause of action within the applicable statute of limitations. This, in turn, depends upon which statute of limitation applies followed by a question of whether the filing of a third party claim by appellant tolled the statute until its final determination. Lastly, there is a question of estoppel by conduct on the part of respondent if we find that June 8, 1964, the date of filing of this action, fell beyond the period of the applicable statute.
The trial court ruled that the applicable limitation period is one year as provided in section 340(3) of the Code of Civil Procedure. Appellant states that research has disclosed no cases wherein the one year statute was held applicable to the specific action of wrongful levy of execution. In its opening brief appellant concedes, for the sake of argument, that the one year statute does apply. In its closing brief appellant takes the position that the three year statute applies, and refers to sections 335 and 338(3) of the Code of Civil Procedure and the case of Evarts v. Jones, 170 Cal.App.2d 197, 205, 338 P.2d 627, in support.
The only direct authority on this point is supplied by respondent who refers us to McFaddin v. H. S. Crocker Co., 219 Cal.App.2d 585, at page 590, 33 Cal.Rptr. 389, at page 393, where we find this language:
'By her second cause of action the plaintiff sought to recover damages for abuse of process, * * *. Such an action is barred within one year after the commission of the wrongful act.'
There seems little question that the gravamen of appellant's alleged injury here stemmed from the initial act by defendant of misusing or abusing a process, to wit: The wrongful levy of a writ of execution which was obtained by respondent in an action in which neither appellant nor its property were involved. The taking or detaining of the goods or chattels followed as a subsequent and resultant phase of that transaction. It is our view that where a question of the nature of the act arises as it does here, and without compelling reason to the contrary, the character of the wrong or injury must be determined by the initial act of wrongdoing which was the abuse of a legal process. Action thereon was, therefore, barred after one year pursuant to the provisions of Code of Civil Procedure, section 340(3). (McFaddin v. H. S. Crocker Co., supra.)
But, while the gravamen of the wrong for the purpose of this decision is determined to be abuse of process, this abuse did not emerge as an established fact until the trial court's ruling on the third party claim became final on December 22, 1962. While the language of McFaddin v. H. S. Crocker Co., supra, 219 Cal.App.2d 585, 33 Cal.Rptr. 389, interpreted literally would seem to indicate a contrary conclusion we must recognize that a civil act, the wrongfulness or legality of which is reasonably open to question, and which is brought before a court for determination does not actually gain legal status as a civil wrong until the court so decides. The trial court's decision on the point became final on December 22, 1962. The one year statute began to run from that date. The present action, filed on June 8, 1964, was, therefore, filed after the statute had run and cannot be maintained unless, as is claimed by appellant, respondent's act in moving to quash the summons instead of answering the former action pursuant to the extension of time granted by appellant, would be sufficient to estop respondent from entitlement to the benefits of the statute. The legal effect of this same extension was before the court in Davies v. Superior Court, 228 Cal.App.2d 535, on page 540, 39 Cal.Rptr. 693, and was discussed and its limited effect delineated. This determination is now res judicata and the law of this case. (Tally v. Ganahl, 151 Cal. 418, 421, 90 P. 1049). The trial court impliedly held, and we agree, that respondent's conduct did not toll the running of the statute or constitute an estoppel. Respondent's demurrer was properly sustained without leave to amend.
Petition for rehearing is denied.
BROWN, P. J., and COUGHLIN, J., concur.