Sixth District Narrowly Construes Scope of “Tort of Another” Fee Exception.
In our November 13, 2008 post, we noted that co-contributors Marc and Mike wrote an article on recovering attorney’s fees as damages in the Vol. 21, No. 3 issue of the 2008 California Litigation. One of the discussed topics was the “tort of another” exception to the American Rule for recovery of attorney’s fees. We discussed how narrowly this exception has been construed by the relevant jurisprudence. The next recent case reinforces this conclusion.
Guzik v. Lee, Case No. H031793 (6th Dist. Jan. 12, 2009) (unpublished) involved Palo Alto neighbors, with plaintiff suing both predecessor owners (Habers) and successor owners of adjacent property (Lees) for a prescriptive easement predicated on nuisance and trespass claims. Plaintiff’s aim as against the Habers was to recover litigation costs incurred in suing the Lees under the “tort of another doctrine,” based on the theory that the Lees “continued or maintained” the nuisance created by Habers. The trial court was not impressed, granting a nonsuit in Habers’ favor. The Sixth District affirmed.
In a scholarly discussion of “tort of another” jurisprudence, Acting Presiding Justice Elia—on behalf of a 3-0 panel—found that no wrongful act of the Habers required plaintiff to sue the Lees; he had to sue the Lees because they were the present property owner not honoring the alleged prescriptive easement. Given that the plaintiff-Lees situation was tantamount to an “ordinary two-party suit,” Prentice v. North Am. Title Guaranty Corp., 59 Cal.2d 618, 620-621 (1963) recognized the “tort of another” doctrine prohibited the allowance of fees in such a context. However, the Sixth District went on to observe that the “exceptional circumstances” gloss added to Prentice in Davis v. Air Technical Industries, Inc., 22 Cal.3d 1, 6 (1978) had been partially abrograted by statute (Code of Civil Procedure section 1021.6—with respect to indemnitors-indemnitees) and distinguished in Gray v. Don Miller & Associates, Inc., 35 Cal.3d 498, 508-509 (1984) as being limited to product liability litigation. (See also Brandt v. Superior Court, 37 Cal.3d 813, 818 n. 4 (1985) [Gray confined Davis to products liability litigation].)
“Thus, Prentice’s rule should not be applied where there is no tortious act … Neither does Prentice apply where there is no causal connection between a tort and the third party litigation, such as where the third party action is unrelated to or independent of another’s wrongdoing and not a natural and proximate consequence of the tort,” citing Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co., 185 Cal.App.3d 1149, 1156-1157 (1986). (Slip Opn., at pp. 13-14.)
Justice Elia summarized why the doctrine did not apply under the sui generis facts of Guzik: “The parties have not cited, and we have not found, any case applying ‘tort of another’ doctrine to an action for trespass or nuisance against the original property owner creating the offensive condition to justify the recovery of litigation costs of suing a subsequent owner who continued the trespass or nuisance.” (Slip Opn., at p 15.) Because both the Lees and Habers were independently (or even possibly jointly) liable to plaintiff for creating, not abating, or maintaining the nuisance, plaintiff had adequate legal recourse against each. Nonetheless, “it is our conclusion that the ‘tort of another’ doctrine would not make [the Habers] liable for the costs of litigation against the Lees.” (Id. at p. 16.)
BLOG UNDERVIEW—Guzik also reminds practitioners that a fees claim under the “tort of another doctrine” must normally be pled and proven to the trier of fact and cannot be asserted by post-trial motion. (See Hsu v. Abbara. 9 Cal.4th 863, 869 n. 4 (1995) [one of our Leading Cases].)