Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 1395 (9th Cir. 1989)

Scott Alan LAKE, et al., Plaintiffs-Appellants,v.Diane Marie LAKE, aka Diane Marie Klymciw, et al.,Defendants-Appellees.

No. 88-3715.

United States Court of Appeals, Ninth Circuit.

Submitted June 28, 1989.* Decided Sept. 7, 1989.

Before FARRIS, NOONAN and LEAVY, Circuit Judges.


MEMORANDUM** 

This case arises out of a custody dispute that worked its way through three states, a federal military base, and a television talk show. Plaintiffs appeal from a decision granting summary judgment in favor of all of the defendants. The parties have now settled most of the case. The only issues remaining involve plaintiffs' claims against Diane Marie Klymciw for abuse of process and interference with parental rights. We hold that the district court properly dismissed both claims.

In order to be liable for abuse of process, a defendant must have the ulterior purpose of using the process in an extortionate fashion to force from the plaintiff some advantage collateral to the proceeding. See, e.g., Spellens v. Spellens, 49 Cal. 2d 210, 232-33, 317 P.2d 613, 626-27 (1957). It is undisputed that Klymciw used California process in order to effect the recovery of her son, Brian, rather than to force some collateral concession from plaintiffs. That she may have had bad motives is beside the point. See Golden v. Dungan, 20 Cal. App. 3d 295, 97 Cal. Rptr. 577, 581 (1971). Because Klymciw used California process "for the immediate use for which it was intended," she cannot be liable for abuse of process. Id.

Summary judgment is also appropriate on the claim for interference with parental rights. At the time she recovered her son, Klymciw had joint custody rights, and was acting pursuant to an order temporarily granting her sole physical custody. See Restatement (Second) of Torts Sec. 700 comment c (1977) (suggesting that one parent with joint custody has no claim against the other parent). By contrast, Scott Lake had removed Brian from Los Angeles County in violation of Klymciw's visitation rights, and later pled guilty to a misdemeanor count of criminal child concealment. Even assuming that Idaho would recognize the tort of interference with parental rights, there is no authority for extending the tort to protect the "rights" of one acting in violation of a custody order and an outstanding criminal warrant. The trial court properly granted summary judgment.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3