Restrictions On Its Application Necessitated Reversal In This Case.
As far as challenges to fee awards, we would have to say that challenges to awards under the “tort of another” doctrine have higher chances of reversal, based on the restrictions applicable to use of this doctrine. Los Angeles Community College Dist. v. Roosevelt Lofts, LLC, Case No. B266057 (2d Dist., Div. 4 Nov. 22, 2016) (unpublished) is a nice illustration of this general observation.
There, appellant Roosevelt Lofts was found to have engaged in fraud in acquiring an easement from the District. Subsequently, the trial judge awarded $294,271 in attorney’s fees to District and against Roosevelt Lofts under the “tort of another” doctrine for work associated with a bankruptcy proceeding, the underlying action (especially an appeal), and a quiet title against another party basically affiliated with Roosevelt Lofts.
The 2/4 DCA reversed the fee award as a matter of law.
The “tort of another” doctrine is subject to these important restrictions: (1) no recovery is permitted for fees incurred in litigation directed against the tortfeasor, even though other parties are incidentally involved; (2) no recovery is permitted for fees incurred in litigation involving a third party sharing the same interests as the tortfeasor; and (3) fees incurred in third party litigation may be recovered from a defendant only when that litigation is “the natural and probable consequence” of the defendant’s tortious conduct such as the third party’s independent conduct (a proximate causation requirement). Application of these restrictions required reversal of the entire fee award, because (1) the pre-decision portion of the bankruptcy proceeding did not constitute an action against the affiliated third party but only insolvency battling with Roosevelt Lofts; (2) the first appeal work did not qualify because the affiliated third party was representing Roosevelt Loft’s interest in that appeal; and (3) post-appeal work pertained to the affiliated third party’s independent conduct for which Roosevelt Lofts could not bear “tort of another” fee exposure.