Chamat v. Latham & Watkins
Filed 5/17/13 Chamat v. Latham & Watkins CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
MAURICIO CHAMAT,
Plaintiff and Appellant,
v.
LATHAM & WATKINS LLP,
Defendant and Respondent.
D061201
(Super. Ct. No. 37-2011-00078536-
CU-MC-SC)
APPEAL from
a judgment of the Superior Court
of
County, William S. Cannon, Judge. Affirmed.
Mauricio
Chamat, in pro. per., for Plaintiff and Appellant.
Latham
& Watkins and Robert J. Ellison for Defendant and Respondent.
Defendant
Latham & Watkins LLP (Latham) deposed plaintiff Mauricio Chamat as a third
party witness on behalf of its client Precision Development, LLC (Precision) in
an accounting and real estate action filed by Precision against Yuri and
Natalia Plyam (the Pylams) in the Superior Court of Los Angeles County. Judgment was entered in favor of Precision
and against the Pylams in the amount of $10.3 million.
In this
action, Chamat sues Precision for "abuse of process" seeking, based
upon his deposition testimony, a share of Precision's $10.3 million
judgment. Precision demurred to the
complaint, and the court sustained the demurrer without leave to amend, finding
that because Chamat was deposed as a percipient witness, he was not entitled to
any compensation for his deposition
testimony.
On appeal,
Chamat, again acting in propria person, asserts (1) he has ownership rights in
his work papers; (2) owed no duty to Precision in the underlying action; (3)
Latham misrepresented that he was a servant of Latham in the underlying case;
(4) Latham misrepresented that he performed accounting services instead of an
audit; (5) Latham admitted that misrepresentation in court; and (6) the legal
standard for sustaining a demurrer was not met.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Before the
underlying litigation between Precision and the Pylams was instituted, Chamat
performed an audit of the books and records
of Castle Trading, a company owned by the Pylams. In March 2009 Precision issued a deposition
subpoena for Chamat to appear for a deposition and to produce certain documents
in his possession. At the deposition, a
Latham employee copied the documents Chamat produced and returned them to
Chamat.
At his
March 2009 deposition, Chamat refused to answer questions and refused to
produce certain documents related to the 2004 and 2005 Castle Trading
audits. Precision brought a motion to
compel and the court granted the motion, ordering Chamat to (1) pay sanctions
for his refusal to answer and to
produce documents, (2) appear for a deposition to answer questions he
previously refused to answer, and (3) produce documents he previously refused
to produce.
B. 2010
Trial Subpoena
Trial was
originally scheduled for June 2010.
Precision subpoenaed Chamat to appear and testify at trial, but Chamat
communicated his intent to refuse to testify.
Precision then sought a bench warrant to compel Chamat's attendance at
trial.
In February
2010 Precision reached an agreement with Chamat, with Precision agreeing to
withdraw its motion seeking a bench warrant and to not collect the sanctions
imposed by the court, in exchange for Chamat's agreement to appear and testify
at trial.
The June
2010 trial was then postponed to March 2011.
In February
2011 Precision subpoenaed Chamat to appear on March 21, 2011, as a trial witness. Latham thereafter advised Chamat that instead
of appearing specifically on March 21,
2011, he would be on call.
Ultimately, Chamat was not called to testify at trial.
D. Procedural
Background
In August 2011 Chamat filed his
pleading in this action) against Latham.
In that complaint Chamat sought a proportionate share of the $10.3
million judgment obtained by Precision
based upon Latham's alleged use of his work papers and deposition testimony in
that action. He nevertheless contends in
the complaint that he should have been retained and paid as an expert and that,
by not doing so, Latham committed abuse of process.
On October 11, 2011, Latham filed a
demurrer to Chamat's complaint. On November
18, 2011, the trial court sustained without leave to amend Latham's
demurrer to Chamat's sole cause of action for abuse of process. The court further explained that Latham
"merely sought to obtain information" from Chamat as authorized by
the Code of Civil Procedure. The court
also stated that "[e]ngaging in discovery as authorized by law does not
give rise to a claim for abuse of process."
The court further explained that
Chamat's contention that he was an "expert" witness "is based on
a misunderstanding of the term as it is used in the discovery
context." The court found that
Chamat was never designated as an expert by any party in the Precision action, but was deposed as
a percipient witness and therefore "[was] not entitled to any
witness fees and transportation costs."
DISCUSSION
I. STANDARD
OF REVIEW
A demurrer will be sustained when,
accepting plaintiff's allegations as true, there is no liability as a matter of
law. (See Code Civ. Proc., § 430.10(e); Blank
v. Kirwan (1985) 39 Cal.3d
311, 318.) While courts give the complaint
a "reasonable interpretation," they do not assume the truth of
"contentions, deductions or conclusions of fact or law." (Blank,
at p. 318.) In addition, "[t]he
complaint should be read as containing the judicially noticeable facts, 'even
when the pleading contains an express allegation to the contrary.'" (Cantu v. Resolution Trust Corp.
(1992) 4 Cal.App.4th 857, 877.)
II. ANALYSIS
A defendant may be subject to
liability for abuse of process only if he or she "(1) entertained an
ulterior motive in using the [judicial process], and (2) committed a willful
act in a wrongful manner." (
Automobile Ins. Co. v. Lee (2011) 193
Cal.App.4th 34, 40 [no abuse of process where plaintiff engaged in discovery as
authorized by law even if he had an ulterior motive]; Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792 [no abuse of
process where defendant filed a meritless appeal solely for the benefit of
delay or to coerce the plaintiff into settling because appealing from the
judgment was authorized by law].)
definite act or threat not authorized by the process, or aimed at an objective
not legitimate in the process, is required; and there is no liability where the
defendant has done nothing more than carry out the process to its authorized
conclusion, even though with bad intentions.
The improper purpose usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding itself, such as
the surrender of property or the payment of money, by the use of the process as
a threat or a club. There is, in other
words, a form of extortion.'" (Spellens
v. Spellens (1957) 49 Cal.2d 210, 232, italics omitted.) "'The purpose for which the process is
used, once it is issued, is the only thing of importance.'" (Ibid.)
Nowhere in the complaint does Chamat
allege that Latham had an improper purpose in undertaking any of the lawful
acts he identifies. Chamat's complaint
only asserts Latham engaged in discovery allowed by the law. Accordingly, the court did not err in
sustaining Latham's demurrer without leave to amend. Engaging in discovery as authorized by law
does not give rise to a claim for abuse of process. (State Farm
Mutual Augomobile Ins. Co. v. Lee, supra, 193 Cal.App.4th at p. 40.)
DISPOSITION
The judgment is affirmed.
Latham shall recover its costs on
appeal.
NARES,
Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
name="_ftn1" title="">[1]
Based on our holding, we need not
address Latham's contention that Chamat's action is barred by the statute of
limitations.
