Cantu v. Resolution Trust Corp.

Cantu alleges that the defendants tortiously prosecuted the interpleader action because (a) there were no competing claimants to the stake, and (b) they named Cantu as a claimant to the stake to create a false appearance of a controversy which did not exist, all in an effort to relieve Lincoln of funds to which it asserted no claim.

Contentions

Cantu’s appeal presents, in essence, two fundamental contentions for this court to resolve: first, whether or not the defendants properly filed the interpleader action based on a dispute between claimants, other than Cantu, concerning control of the Nosotros accounts; and, second, assuming that the defendants properly filed the interpleader action, whether or not naming Cantu as a claimant constituted malicious prosecution, abuse of process, or intentional infliction of emotional distress.

The Parker defendants contend that a review of the pleadings and the judicially noticeable documents before the superior court—including Cantu’s admissions at variance with his allegations—requires, as a matter of law, that this court affirm the ruling of the trial court sustaining without leave to amend defendants’ demurrer to Cantu’s amended complaint and dismiss Cantu’s appeal.

Procedural and Factual Synopsis

A. Procedural Summary

On or about March 8, 1989, Cantu filed an unverified complaint alleging a single cause of action for malicious prosecution. The Parker defendants answered and the Lincoln defendants demurred. At the hearing on June 15, 1989, Judge John Zebrowski presiding, the court instructed the parties to attend a mandatory settlement conference before Judge Robert Weil prior to any resolution of the demurrer. Judge Zebrowski further indicated that he would reschedule the hearing on Lincoln’s demurrer should the parties fail to resolve their differences at the mandatory settlement conference.

During the July 19, 1989, mandatory settlement conference, after it became apparent that the parties could not settle the dispute, Judge Weil ordered the parties to arbitration even though the case was not yet at issue

and Judge Zebrowski had yet to rule on Lincoln’s demurrer. On March 28, 1990, the parties arbitrated Cantu’s claim. The arbitrator issued his decision on June 18, 1990, ruling for the defendants and awarding Cantu nothing. Cantu then requested trial de novo and, in accord with the arbitration order of the mandatory settlement conference judge, the parties attended a continuation of the mandatory settlement conference at which they again could not resolve the dispute.

Thereafter, the Lincoln defendants scheduled October 30, 1990, as the date for the hearing on the original demurrer to the complaint. Shortly before the hearing, Ed Barker, Esq., counsel for Cantu, conceded that the demurrer was well taken, and the lower court, now Judge Ronald Sohigian presiding, sustained the demurrer, but granted Cantu leave to amend his malicious prosecution cause of action. Cantu never sought leave to amend his complaint to add new causes of action. Nevertheless, although the first amended complaint reflected only minor changes to Cantu’s cause of action for malicious prosecution, it set forth two entirely new causes of action for abuse of process and intentional infliction of emotional distress.

On or about December 14, 1990, the Lincoln defendants filed another general demurrer to Cantu’s first amended complaint. All defendants demurred to all three causes of action in the first amended complaint, and joined in the others’ demurrer. On January 3, 1991, the demurrers were heard by the trial court, now Judge Valerie Baker presiding. Judge Baker sustained both demurrers on all the grounds the defendants raised. Cantu now appeals from Judge Baker’s ruling.

B. Factual Summary

Nosotros had maintained savings and checking accounts with Lincoln’s Los Angeles branch since March 1986. William M. Zamora, as president of Nosotros, opened the accounts (the Nosotros accounts or the stake). As of October 2,1986, the signature cards for these accounts authorized Lincoln to release funds to only Mr. Zamora and Roberto A. Jiminez of Nosotros. On or about October 2, 1986, an individual named Manny Diaz visited a Lincoln branch claiming that Nosotros authorized him to change the signature cards. As of that date, the Nosotros accounts contained approximately $14,000. Mr. Diaz requested that Lincoln delete Mr. Zamora’s name from the signature card and add Mr. Diaz’s name and the names of several other individuals.

On October 8, 1986, Mr. Zamora visited the same Lincoln branch and produced a copy of a preliminary injunction (the Zamora injunction) issued in December 1985 as part of a superior court action entitled Nosotros v.

Cortez, (No. C577490) (the Zamora action). The Zamora injunction enjoined, inter alia, Mr. Diaz from interfering with Mr. Zamora’s rights, privileges and duties as president of Nosotros and appeared to prohibit Mr. Diaz’s attempt to change the signature card for the Nosotros accounts.

On notice of the competing claims between, inter alia, Messrs. Zamora and Diaz to signatory authority, Lincoln then froze the Nosotros accounts and advised the affected parties of its action, including Maria C. Davoli, Esq., Mr. Zamora’s counsel. Ms. Davoli confirmed that the Zamora injunction was still in effect.

Two weeks later, on October 21, 1986, Cantu called David Thompson, Esq., Lincoln’s corporate counsel, asked for Lincoln’s address for the stated purpose of starting legal proceedings against Lincoln, and claimed that Lincoln had wrongfully put a hold on the Nosotros accounts. Prior to this contact, Lincoln had no idea of Cantu’s involvement in the Nosotros dispute. On October 27, 1986, only six days later, Lincoln was served with a complaint which sought, inter alia, injunctive relief and $5 million in punitive damages from Lincoln and others, including Mr. Zamora (the Nosotros action and the Nosotros complaint). The Nosotros complaint alleged repeatedly that Mr. Zamora had urged Lincoln to freeze the Nosotros accounts when he presented the Zamora injunction to Lincoln.

On October 28, 1986, Lincoln, through the Parker defendants, filed a complaint in interpleader pursuant to Code of Civil Procedure sections 386-386.6, entitled Lincoln Sav. & Assn. v. Nosotros, (Super. Ct. No. C622602), naming Nosotros, Cantu, Mr. Zamora, Mr. Diaz, Mr. Jiminez, Tony Cortez, Rick Castro, Manny Castro, Ralph Camarillo, and Richard Rodriguez as claimants. Each individual claimant in the interpleader action was alleged to be, and was, affiliated with Nosotros. The interpleader action allegedly arose from the dispute between Nosotros members, or its internal factions, over control of Nosotros and the Nosotros accounts.

Lincoln alleged, in substance, that it had no interest in the disputed Nosotros accounts, but that it could not release control of the stake to any of the claimants without risking liability to the other claimants. Lincoln sought injunctive relief pursuant to Code of Civil Procedure section 386, subdivision (f) to block the claimants from filing suits against it with respect to the stake and to stay the Nosotros action. The interpleader complaint sought no damages from Cantu or any other claimant. When Lincoln filed the inter-pleader complaint, it also deposited the stake with the court pursuant to Code of Civil Procedure section 386, subdivision (c).

The court granted a temporary restraining order (the TRO) in favor of Lincoln on October 28, 1986. On November 7, 1986, Cantu filed an opposition to the TRO and the requested preliminary injunction. Cantu’s opposition contained extensive arguments on behalf of Nosotros to the effect that

Lincoln had falsely, erroneously and fraudulently frozen the Nosotros accounts in improper reliance on statements made by Mr. Zamora—referred to as the “President”—and the Zamora injunction. On November 14, 1986, the court granted the relief Lincoln sought and, on November 21, 1986, issued a preliminary injunction (the Lincoln injunction) which, inter alia, stayed the Nosotros action. The Lincoln injunction was never vacated. It remained in effect, despite Cantu’s protests, until the court released the Nosotros accounts from its jurisdiction as a result of a settlement between Nosotros, Mr. Zamora, and all claimants named in the interpleader action, except for Cantu, who refused to participate. On November 9, 1988, Lincoln dismissed the interpleader action with prejudice against all claimants. On November 22, 1988, a dismissal of the Nosotros action was filed and entered by the court.

I

ssues on Appeal

1. Whether or not, as a matter of public policy under California law, a plaintiff in interpleader may incur tort liability to a named claimant in an interpleader action when the claimant had no claim to the stake.

2. Whether the ruling sustaining the demurrers to Cantu’s cause of action for malicious prosecution should be affirmed on any of the grounds identified in the demurrers filed by the Lincoln defendants or the Parker defendants.

3. Whether the ruling sustaining the demurrers to Cantu’s cause of action for abuse of process should be affirmed on any of the grounds identified in the demurrers filed by the Lincoln defendants or the Parker defendants.

4. Whether the ruling sustaining the demurrers to Cantu’s cause of action for intentional infliction of emotional distress should be affirmed on any of the grounds identified in the demurrers filed by the Lincoln defendants or the Parker defendants.

5. Whether the demurrers to Cantu’s three causes of action should have been sustained without leave to amend.

V.

Discussion

A. As a matter of law and public policy, an interpleader plaintiff cannot incur tort liability for naming someone as a potential claimant when filing an interpleader action.

claim to a stake. More to the point, however, Cantu could not possibly have been damaged solely as a result of being named as a claimant. At the core of the interpleader procedure is the notion that a “claimant” is not a defendant from whom affirmative relief is sought. Interpleader actions impose no obligations on claimants. Claimants are simply offered the opportunity to assert a right to control of a stake.

In his opening brief, Cantu makes a number of contentions as to how he had no choice but to “litigate” the interpleader action until Lincoln dismissed him. These contentions are completely without factual or legal support. No harm can befall a claimant who merely renounces any conceivable right to a stake. Inasmuch as a “default” in the interpleader action simply would have barred his claim, Cantu need never have acted at all if he had no claim to the stake.

If Cantu did not want to participate in the interpleader action, he needed only to file a disclaimer relinquishing any purported claim to the stake. (Sterling Escrow Co. v. Vandemoot (1957) 150 Cal.App.2d 735 , 737, 739 [ 310 P.2d 692 ].) Indeed, on November 14, 1986, at the hearing on the Lincoln injunction, counsel for Lincoln, in open court, invited him to file such a disclosure:

“[A]s to Mr. Cantou [sic], any defendant in an interpleader action can simply file something with the court saying that that defendant does not want to make a claim against the sta[k]e.”

Cantu never bothered to file such a disclaimer with the court. Alternatively, Cantu could have remained silent and passive. Another option would have been to answer, and then do nothing. Despite his assertion that he had no claim, Cantu pursued none of these options. The thousands of dollars Cantu claims to have spent on attorney fees while representing himself in propria persona need never have been spent.

In practice, the theory upon which Cantu relies, if approved and applied, would inevitably burden all interpleading parties with duties to claimants that are not set out in the interpleader statute and would eliminate its utility. Creating a requirement that a stakeholder dismiss claimants, sua sponte, when and if it interprets a claimant’s pleading to express a request for dismissal, would establish a tension with the current goal of removing the stakeholder from the controversy. The new requirements would expose an interpleading party to potential liability if it were to misinterpret a claimant’s pleading and either (a) dismiss one against its wishes, or, (b) as here, fail to file such a dismissal.

pleads inconsistently in separate actions, the plaintiff's complaint is nothing more than a sham that seeks to avoid the effect of a demurrer. (Id., at p. 771; accord Morton v. Loveman, supra, 267 Cal.App.2d at pp. 717-719; Pike v. Archibald (1953) 118 Cal.App.2d 114 , 116-119 [ 257 P.2d 480 ].) Under such circumstances, the court will disregard the falsely pleaded facts and affirm the demurrer.

Cantu reasons that, but for his inclusion in the suit, the interpleader action would have been improper, and defendants would not have been able to enjoin the Nosotros action. “At all times herein mentioned the Plaintiff Cantu was informed and believed that there were no competing claims to the funds.” This contention, which is incorporated by reference in Cantu’s other causes of action, remains the cornerstone of, and permeates, Cantu’s attempt to obtain relief on appeal. Cantu argued that:

“To qualify for injunctive relief, Lincoln had to falsely allege that it was facing vexatious litigation. To accomplish this Lincoln Savings wilfully misrepresented to the Court that Cantu had claimed for his own the Nosotros funds ....[¶] Lincoln fabricated the evidence to trick and convince the court that it was actually facing a multiplicity of lawsuits which entitled it to receive injunctive relief to enjoin the filing of new lawsuits as well as the haulting [sic] of the prosecution of existing litigation, knowing that Lincoln was not entitled to it. To formalize its plans, Lincoln only needed to claim that it had received a separate threat of a lawsuit from Cesar Cantu.” (Italics added.)

Defendants’ alleged strategem is the sole basis identified in the first amended complaint for the allegation that defendants lacked probable cause and acted with malice in initiating the interpleader action. Yet, well before he filed this action, Cantu knew that the defendants knew that Messrs. Zamora and Diaz had asserted competing claims to the stake. Having admitted that he knew that defendants faced a multiplicity of claims concerning the stake, Cantu cannot now inconsistently and falsely allege to the contrary.

There is no doubt that Cantu filed this action with full knowledge that competing claims for control of the Nosotros accounts existed at the time Lincoln filed the interpleader action. As the Parker defendants demonstrated in their demurrer, Cantu asserted, and therefore conceded, that Mr. Zamora, a named claimant in the interpleader action and the former president of Nosotros, claimed a right to control the Nosotros accounts separate and apart from, and in contrast to the claims of Nosotros and its officers. Cantu answered “[tjhere is a misjoiner [sic] of defendants in that Caesar Cantu, for instance, has been named a defendant together with Nosotros, William

plaintiff and claimant an interpleader action is not adversarial. (Code Civ. Proc., § 386.)

For at least four reasons, Cantu’s claim that the interpleader action terminated in his favor is, as a matter of law, inadequate to meet the favorable termination element: (1) Cantu failed to plead sufficient facts to support this element; (2) an interpleader action is not adversarial as between a claimant and the stakeholder and, hence, Cantu could not prevail against Lincoln, or vice versa; (3) the dismissal of the competing claimants and the disposition of the stake to Nosotros precluded the court from exercising continued jurisdiction; and (4) the parties resolved the interpleader action by settlement.

First, Cantu fails to plead any facts—other than the fact of the dismissal— to support his conclusion that the interpleader action terminated in his favor. “A termination is favorable when it reflects ‘the opinion of someone, either the trial court or the prosecuting party, that the action lacked merit or if pursued would result in a decision in favor of the defendant.’ ” (Camarena v. Sequoia Ins. Co. (1987) 190 Cal.App.3d 1089 , 1099 [ 235 Cal.Rptr. 820 ].) “It is not enough . . . merely to show that the proceeding was dismissed.” (Jaffe v. Stone (1941) 18 Cal.2d 146 , 150 [ 114 P.2d 335 , 135 A.L.R. 775 ].) The termination .must demonstrate the innocence of the accused. “Standing alone, an allegation that all proceedings terminated favorably to plaintiff would be a mere conclusion and insufficient to satisfy requirements of pleading on the point where placed in issue by general and special demurrer.” (Webb v. Youmans (1967) 248 Cal.App.2d 851 , 854 [ 57 Cal.Rptr. 11 ].) Without additional facts, Cantu’s allegation too is nothing more than a conclusion and, therefore, insufficient.

The test is whether or not the termination tends to indicate the innocence of the defendant or simply involves technical, procedural or other reasons that are not inconsistent with the defendant’s guilt. (Jaffe v. Stone, supra, 18 Cal.2d at p. 150; Haight v. Handweiler (1988) 199 Cal.App.3d 85 , 88-89 [ 244 Cal.Rptr. 488 ].) The focus is not on the malicious prosecution plaintiff’s opinion of his innocence, but on the opinion of the dismissing party. (Id., at p. 89.)

Second, it is difficult to comprehend how Cantu can logically plead any fact which would indicate that the interpleader action terminated in his favor. There was no accused, and Lincoln did not attempt to establish any party’s culpability. Cantu’s innocence or guilt were simply not at issue. As between an interpleader plaintiff and the named claimants, an inter-pleader action simply is not adversarial—the interpleader plaintiff attempts

compromise reflects ambiguously on the merits of the action and leaves open the question of the defendant’s guilt or innocence. (Minasian v. Sapse, supra, 80 Cal.App.3d at p. 827, fn. 4; accord Webb v. Youmans, supra, 248 Cal.App.2d at p. 853.)

Even the dismissal of a party who refuses to participate in a settlement concluded by other parties does not constitute a favorable termination for the nonsettling party. (Oprian v. Goldrich, Kest & Associates, supra, 220 Cal.App.3d at p. 344; Haight v. Handweiler, supra, 199 Cal.App.3d at p. 89.) In Haight, Haight originally filed a medical malpractice action against Codes, but lost. (Id., at p. 87.) Codes then sued Haight and Haight’s former attorney and expert witness for malicious prosecution. Haight’s former attorney and expert witness settled with Codes who dismissed all three defendants, although neither Haight nor his new attorney consented to the settlement or dismissal. Haight then sued Codes for malicious prosecution. The reviewing court concluded that Godes’s malicious prosecution action did not terminate in favor of Haight. (Id., at pp. 88-89.) The settlement and Haight’s dismissal did not reflect on the merits of Godes’s claim because Codes merely decided that he had obtained a satisfactory resolution of his claim. (Id., at p. 89; accord Oprian, supra, 220 Cal.App.3d at pp. 343-344.) (lOd) Because Cantu cannot dispute that Lincoln dismissed him as a result of the settlement, he cannot allege that the dismissal resulted in a favorable termination.

In conclusion, once the parties settled and the court released the stake, nothing remained against which to make a claim, and there was no further subject matter jurisdiction or purpose for the interpleader action. The settlement cemented the results of the injunctive relief sought by and granted to Lincoln and was consistent with the position asserted by Lincoln from the outset. Consequently, the dismissal of the interpleader action did not constitute a concession on the merits or termination in Cantu’s favor.

. b. The Parker defendants had probable cause to file the interpleader action.

When the Parker defendants filed the interpleader action on Lincoln’s behalf, they contend that they relied on, inter alia, the following: (a) the Thompson declaration, which indicated that Cantu was a potential claimant to the stake, (b) Nosotros’s pleadings, (c) the Zamora injunction, and (d) communications with Mr. Zamora’s attorney, Maria Davoli, Esq., all of which indicated that Nosotros and Zamora disputed, inter se, the right to control the Nosotros accounts. Cantu does not dispute that this information was available to the Parker defendants when they filed the interpleader

action on behalf of Lincoln. In light of the information available to the defendants at the time they filed the interpleader action, it is clear, even in hindsight, that probable cause existed for filing it.

An attorney has probable cause to file a claim if a court determines, as a matter of law, that “any reasonable attorney would have thought the claim tenable.” (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 886.) Contrary to Cantu’s contention, the question is not one of fact. (Id., at p. 879.) Where, as here, the facts relied upon by the attorney are not in dispute, the attorney’s subjective belief in the legal merits of the claim is irrelevant to determining probable cause. (Id., at p. 879.) The court must apply an objective standard. (Id., at p. 878.) “[I]f the trial court determines that the prior action was objectively reasonable, the plaintiff has failed to meet the threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to prevail.” (Id., at p. 878.) Even if the conclusions drawn by the Parker defendants were incorrect, they were, by an objective standard, reasonable in light of the available information.

c. The Parker defendants did not prosecute the interpleader action with malice.

Malice “may exist when proceedings are commenced primarily for an improper purpose.” (Camarena v. Sequoia Ins. Co., supra, 190 Cal.App.3d at p. 1097.) In his first amended complaint, Cantu alleged that the defendants’ “improper” purpose was to enjoin the Nosotros action and obtain attorney fees by creating the illusion of a dispute where none existed. However, as discussed herein, Cantu effectively admitted, prior to filing this suit, that a dispute existed concerning the Nosotros accounts. Because the interpleader statute plainly authorizes the relief Lincoln sought in the inter-pleader action, the defendants’ actions were hardly improper. Moreover, Cantu did not allege that he was the target of defendants’ allegedly “improper purpose,” merely that he was an instrumentality used to achieve it. Because a malicious prosecution plaintiff must also show that his or her interest was the target of the defendant’s improper purpose (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 881; Hogen v. Valley Hospital, supra, 147 Cal.App.3d 126 -127), Cantu’s cause of action is defective. (Camarena v. Sequoia Ins. Co., supra, 190 Cal.App.3d at pp. 1097-1098.)

3. Cantu has failed to demonstrate that any of the grounds for sustaining the demurrers to his abuse of process claim are erroneous.

In order to state a cause of action for abuse of process, a party must adequately plead two fundamental elements: “ ‘ “[F]irst, an ulterior purpose,

and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding.” ’ ” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157 , 1168 [ 232 Cal.Rptr. 567 , 728, P.2d 1202 ].) Cantu’s opening brief is devoid of any persuasive argument rebutting the defendants’ contentions that Cantu failed to adequately plead either of these two fundamental elements. Cantu cannot convincingly dispute that the interpleader action was used for its proper purpose or allege a wilful, unprivileged and improper act in the use of the inter-pleader process by the defendants.

Cantu alleged that (1) the defendants filed the interpleader action to stay the prosecution of the Nosotros action, (2) named him as a claimant to create the appearance of a dispute, and (3) that the defendants submitted perjurious declarations to help accomplish their nefarious goals. Cantu does not identify which of the elements are satisfied by the defendants’ alleged conduct and, more to the point, he has not properly pleaded these elements. As will be demonstrated below, none of the alleged conduct satisfies either of the elements and, in any event, the cause of action is time barred.

a. No cause of action lies for abuse of process for maintaining an interpleader action where the plaintiff had no right to the stake.

In Pacific Loan, the court affirmed a summary judgment dismissing a cross-complaint that stated claims for, inter alia, abuse of process and intentional infliction of emotional distress arising out of the cross-defendant’s filing of an interpleader and refusal to turn over the stake to one of the named claimants. (Pacific Loan Management Corp. v. Superior Court, supra, 196 Cal.App.3d at p. 1488.) There, in opposing the motion for summary judgment, the cross-complainant argued, in essence, that the cross-defendant was “liable simply because it chose to file interpleader and refused to adjudicate the dispute between the claimants itself and in favor of [the cross-complainant],” (id., at p. 1489) arguments strikingly similar to those Cantu makes here.

In affirming dismissal of the cross-complaint, the court held that a claimant who did not clearly have a right to immediate release of interpleaded funds cannot state a cause of action for abuse of process. (Id., at p. 1491.) Here, Cantu was patently not entitled to immediate release of the stake.

b. The Parker defendants used the interpleader statute properly.

The Parker defendants’ allegedly improper purposes in initiating the interpleader action, i.e., to stay the pending lawsuit and permit the resolution

of the competing claims to the stake between those who claimed rights to it, were authorized by the interpleader statute and were not “improper.” The interpleader statute authorizes a stakeholder to file an interpleader action (a) to stay prior filed actions concerning disputes over funds in which the stakeholder has no interest, (b) to name all potential persons who may assert a claim to control the funds, and (c) to obtain fees and costs at the court’s discretion. (Code Civ. Proc., § 386.) Because there was a dispute between at least two of the claimants named by the defendants to the stake, defendants were entitled to seek the relief the trial court granted. Consequently, Cantu’s claim is defective because “there is no abuse of process if it is used for its proper purpose even though the person uses it for wrongful and malicious motives.” (5 Witkin, Summary of Cal. Law, Torts (9th ed. 1988) § 463, p. 550.)

c. Cantu failed to allege a wilful act.

Cantu also failed to adequately allege a wilful act in the use of the interpleader process not proper in the regular conduct of the procedure. Neither filing a complaint nor submitting perjurious declarations—the only conceivable acts alleged—operates as a wilful act sufficient to meet the requirements of this element.

First, merely filing or maintaining a lawsuit is not a proper basis for an abuse of process claim: “Because the lack-of-probable-cause requirement in the malicious prosecution tort plays a crucial role in protecting the right to seek judicial relief [citation], we agree with the prior decisions which have concluded that this element may not be circumvented through expansion of the abuse of process tort to encompass the alleged improper filing of a lawsuit.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1170.) Consequently, filing the interpleader action does not satisfy the wilful act requirement.

Second, Cantu’s conclusory allegation that the defendants knowingly filed an allegedly false and libelous declaration also fails to satisfy the wilful act requirement. Statements made in the course of litigation are subject to the privilege set forth in Civil Code section 47, subdivision (2) (currently Civ. Code, § 47, subd. (b)) and cannot provide the basis for an abuse of process action. (Silberg v. Anderson (1990) 50 Cal.3d 205 , 212-215 [ 266 Cal.Rptr. 638 , 786 P.2d 365 ]; Kachig v. Boothe (1971) 22 Cal.App.3d 626 [ 99 Cal.Rptr. 393 ].)

d. Cantu’s claim for abuse of process is barred by the applicable one-

year statute of limitations.

Because abuse of process is an injury to the person, the statute of limitations applicable to Cantu’s claim for abuse of process is one year.

(Code Civ. Proc., § 340, subd. (3); Simons v. Edouarde (1950) 98 Cal.App.2d 826 , 828 [ 221 P.2d 203 ].) The limitations period begins to run when the abuse of process occurs. (McFaddin v. H. S. Crocker Co. (1963) 219 Cal.App.2d 585 , 590 [ 33 Cal.Rptr. 389 ].) If the injury to the plaintiff does not occur at the time the abuse of process occurs, then the limitations period begins to run when the injury occurs. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457 , 1467 [ 246 Cal.Rptr. 815 ].)

Cantu alleged that the wrongful act which constituted the abuse of process first occurred when Lincoln filed the interpleader action and served him with the complaint and the TRO. Because, according to Cantu, this occurred on November 2, 1986, at which time he allegedly became obligated to respond to the interpleader action, Cantu’s injury occurred on that date. (McFaddin v. H. S. Crocker Co., supra, 219 Cal.App.2d at pp. 588, 590-591.)

Cantu contended, as early as November 7, 1986, that the defendants’ conduct constituted abuse of process. Nevertheless, Cantu did not file this action until March 8, 1989, at the earliest—the date on which he filed his original complaint for malicious prosecution. Because Cantu failed to prosecute any conceivable claim for abuse of process within the statutory one year period, his claim is barred.

4. Cantu has failed to demonstrate that any of the grounds that the trial court relied upon to sustain defendants’ demurrers to his claim for intentional infliction of emotional distress were erroneous.

a. Cantu failed to adequately plead the elements of intentional infliction of emotional distress.

In order to recover for intentional infliction of emotional distress, a plaintiff must plead, inter alia, that (1) the defendant engaged in outrageous conduct, and (2) the defendant’s conduct was not privileged. (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602 , 616-617 [210 CalJRptr. 578].) The Parker defendants argued in support of their demurrer that Cantu failed to state a cause of action for this tort due to his failure to adequately plead either element. In his opening brief, Cantu fails to address the pleading deficiencies identified in the Parker defendants’ demurrer. There is no authority for the proposition that a party’s attempt to submit a dispute to a judicial tribunal, as expressly authorized by Code of Civil Procedure section 386, can, in itself, give rise to a cause of action for intentional infliction of emotional distress. (Pacific Loan Management Corp. v. Superior Court, supra, 196 Cal.App.3d at p. 1491.)

(First italics added.) (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 875.) Given that the sole basis alleged for Cantu’s cause of action for intentional infliction of emotional distress is the defendants’ initiation of the interpleader action and the filing of supporting declarations, this cause of action must be dismissed if for no other reason than that Cantu has otherwise sought to assert, albeit improperly, the only cause of action cognizable for the wrong alleged—malicious prosecution.

Because Cantu has failed to submit any persuasive argument demonstrating that the trial court improperly sustained the Parker defendants’ demurrer to this cause of action, the ruling of the trial court is affirmed.

b. Cantu’s claim for intentional infliction of emotional distress is barred by the applicable one year statute of limitations.

Because intentional infliction of emotional distress is an injury to the person, the applicable statute of limitations is one year. (Code Civ. Proc., § 340, subd. (3); Scannell v. County of Riverside (1984) 152 Cal.App.3d 596 , 616 [ 199 Cal.Rptr. 644 ].) A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant. (Murphy v. Allstate Ins. Co. (1978) 83 Cal.App.3d 38 , 50-51 [ 147 Cal.Rptr. 565 ].)

Cantu’s own allegations in his first amended complaint demonstrate that this claim is barred by the statute of limitations. Cantu alleges that the outrageous conduct was filing the interpleader action because the Parker defendants allegedly knew that he had no personal claim to the funds and the interpleader action caused him severe emotional distress. In essence, Cantu claims that the Parker defendants filed the interpleader action on behalf of Lincoln to cause him severe emotional distress and that he suffered severe emotional distress once he was served with the interpleader complaint on November 2, 1986. Consequently, his cause of action accrued at that moment, the statute of limitations began to run, and Cantu’s claim was barred one year from the date of service, i.e., November 3, 1987. The bar date passed more than one year before Cantu filed his original complaint in this action.

D. Cantu failed to identify any new facts that he could allege in an amended complaint and demonstrate how those facts establish a cause of action.

When a trial court sustains a demurrer without leave to amend, the appellate court also reviews that ruling for abuse of discretion. (Blank v.

Kirwan, supra, 39 Cal.3d at p. 318.) A trial court does not abuse its discretion when it sustains a demurrer without leave to amend if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim. (Kately v. Wilkinson (1983) 148 Cal.App.3d 576 , 581 [ 195 Cal.Rptr. 902 ].)

Again, the burden falls squarely on Cantu to show what facts he could plead to state a cause of action if allowed the opportunity to replead. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action. (Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc. (1990) 221 Cal.App.3d 617 , 622, 626-627 [ 270 Cal.Rptr. 566 ]; McMartin v. Children’s Institute International (1989) 212 Cal.App.3d 1393 , 1408 [ 261 Cal.Rptr. 437 ].) Absent such a showing, the appellate court cannot assess whether or not the trial court abused its discretion by denying leave to amend. Cantu never filed a proposed amended complaint when he opposed the demurrers below so the only new facts for this court to consider are those Cantu sets forth in his opening brief. There are five of these.

1. Cantu failed to identify new facts which could establish malicious prosecution.

Cantu identifies two new facts in his opening brief to support his malicious prosecution claim. First, Cantu now asserts that naming him as a claimant while knowing that he neither had a claim nor made a claim establishes malice. Again, Cantu ignores the inherent nature of an inter-pleader action—the interpleading plaintiff offers the claimants an opportunity to make a claim; it does not try to take something away from them. Allowing Cantu to establish malice based on this allegation—which arises out of an interpleader action, not an adversarial action—will make inter-pleading parties reticent to name anyone as a claimant when they are unsure and, thus, completely undermine the policy goals of interpleader.

The Parker defendants readily concede that naming someone as a defendant in an adversarial proceeding knowing that the person is not a proper defendant supports an allegation of malice. This analysis, however, only makes sense in the interpleader context when a claimant with a known, uncontested right to a stake is forced to litigate an interpleader action to recover the stake because the stakeholder used interpleader to frustrate the claimant. (See Dunn v. Koehring Co. (5th Cir. 1977) 546 F.2d 1193 , 1199 [Interpleader constituted malicious prosecution because stakeholder instituted action to avoid paying stake to claimant who held a judgment against

the stake.].) Here, no one forced Cantu to litigate anything, and he could not have suffered any damages by failing to make a claim he did not have.

Second, to establish that the interpleader action terminated in his favor, Cantu now claims that Lincoln voluntarily dismissed him to avoid producing Mr. Symes for a deposition. The dismissal itself is not a new fact. Furthermore, the fact that Cantu obtained a collateral order in the course of the interpleader action does not mean that it terminated in his favor. (See Webb v. Youmans, supra, 248 Cal.App.2d at p. 854.)

2. Cantu failed to allege any new facts which could avoid the statutory bar on his claims for abuse of process and intentional infliction of emotional distress.

To overcome the statutory bar on his claims for abuse of process and intentional infliction of emotional distress, Cantu now seems to suggest that alleged settlement discussions between him and Lincoln somehow tolled the statute of limitations. First, contents of settlement discussions are privileged as a matter of law. (Evid. Code, § 1152, subd. (a).) Second, Cantu points to nothing about these discussions that precluded him from asserting his claims in court.

Next, Cantu alleges that the TRO and the Lincoln injunction precluded him from asserting these claims until the interpleader action ended. This allegation is simply wrong; both orders explicitly state that they preclude the parties from asserting claims involving control over the Nosotros accounts. Cantu’s claims do not seek relief affecting the rights to control the Nosotros accounts.

3. Cantu has failed to set forth any new facts which could support the improper purpose element of his abuse of process claim.

To establish the improper purpose element of his abuse of process claim, Cantu now claims that the defendants prosecuted the interpleader action to punish him and ruin his relationship with his employer and Nosotros. Cantu points to nothing which even remotely supports this conclusion. This assertion is an insufficient basis upon which to permit an amendment. (Cf. Weaver v. Superior Court, supra, 95 Cal.App.3d at p. 187.) In any event, abuse of process still requires that the defendant wilfully use the specified process in an unauthorized manner, something which Cantu failed to allege any new facts to support. (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782 , 792-793 [ 226 Cal.Rptr. 90 , 718 P.2d 77 , 62 A.L.R.4th 1083 ].)

4. Cantu should not be allowed to plead any additional facts to support his causes of action.

None of the new “facts” that Cantu alleges establish any element of his claims. Furthermore, Cantu failed to allege any new facts whatsoever to support (1) the lack of probable cause requirement for his malicious prosecution claim, (2) the wilful act requirement for his abuse of process claim, or (3) the outrageous conduct requirement for his intentional infliction of emotional distress claim. Cantu’s failure to identify any new facts to establish these elements requires this court to sustain the demurrers regardless of the impact of Cantu’s allegedly “new” facts.

VI.

Disposition

The judgment is affirmed. Costs of appeal are awarded to respondents.

Lillie, P. J., and Johnson, J., concurred.

A petition for a rehearing was denied April 15, 1992.