Plaintiff’s Prior Loss In An Arbitration Against Seller And Seller’s Broker Did Not Prevent Application Of The Doctrine.
Plaintiff buyer of a residential house was not pleased after discovering that the property reeked of cigarette smoke. She first sued seller and seller’s broker primarily for nondisclosure, and she lost an arbitration against them (naturally incurring attorney’s fees in the process). Plaintiff then sued her broker, but the lower court sustained a demurrer without leave based on the arbitration result having collateral estoppel impact and because tort of another is not an independent cause of action.
The 2/3 DCA reversed in Selby v. Stangl, Case No. B327247 (2d Dist., Div. 3 Mar. 27, 2026) (unpublished). The arbitration did not have collateral estoppel impact as against her broker. Although agreeing with the sustaining of the demurrer to the extent it determined that tort of another was not an independent cause of action, the appellate court found that the theory had merit under Gray v. Dan Miller & Associates, 35 Cal.3d 498, 502-503, 507, 509 (1984), such that it could be recovered as a component of damages when litigating her tort claims even though she lost her arbitration claims against other alleged tortfeasors.