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Article: Recovering Attorney Fees Under ‘Tort of Another’ in California

June 2, 2020 | Posted in : Article / Book, Fee Award, Fee Doctrine / Fee Theory, Fee Entitlement / Recoverability, Fee Request, Fee Statute

A recent article by Gregory G. Brown, “Recovery of Attorneys’ Fees in CA Under the ‘Tort of Another’” reports on the recovery of attorney fees under the Tort of Another doctrine in California.  This article was posted with permission.  The article reads:

Under the “American Rule” each party to a lawsuit is responsible for their own attorney’s fees and costs absent a contractual agreement or statutory exception. (Cal. Code Civ. Proc. § 1021).  This rule can often lead to inequitable results, particularly where the cost of defending a lawsuit exceeds the damages at issue.  One exception to the “American Rule” which allows a defendant to recovery their attorney’s fees is the “tort of another doctrine.”

What is the Tort of Another Doctrine?

The tort of another doctrine is an exception to the “American Rule” which allows for recovery of attorney’s fees which are incurred as a result of another party’s wrongful actions.  Consider the following scenario: a real estate agent lists a property for sale.  Buyer makes an offer to the agent, and the agent tells Buyer that the Seller has accepted.  Several months later however, the agent tells Buyer that Seller has pulled out of the deal, resulting in Buyer filing a lawsuit against Seller and the agent.  At trial the Court finds that the Seller never accepted Buyer’s offer, and the agent had lied when he had made that claim to Buyer.  Under that scenario, the tort of another doctrine would allow Buyer to recover its attorney’s fees from the real estate agent for causing Buyer to incur attorney’s fees by suing the innocent Seller.

When Does the Tort of Another Doctrine Apply?

In order for the tort of another doctrine to apply, an actual tort claim must be committed by the party required to pay attorney’s fees. If there is no tort by a third party, the tort of another doctrine does not apply.  Further, the doctrine only applies where “exceptional circumstances” are present and not where attorney’s fees are incurred by a party solely in defense of their own alleged wrongdoing.  Thus if a party’s own wrongful conduct is part of the reason it is forced to defend a lawsuit, the doctrine would not be applicable.

Who Can Seek Fees Through the Tort of Another Doctrine?

Both Plaintiffs and Defendants in a lawsuit can seek fees through the tort of another doctrine.  The doctrine applies to any person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person.