Tort Of Another: Buyer Alleging Joint Conspiracy Theory Could Not Recover Attorney’s Fees From Joint Tortfeasors, Real Estate Agent And Broker, Based On Tort Of Another Theory

Court Of Appeal Followed Vacco Industries’ Reasoning On This Issue.

            In 3405/3407 Slauson Ave., LLC v. Gilleron, Case No. B265290 (2d Dist., Div. 3 June 13, 2018) (unpublished), plaintiff buyer agreed to purchase 4 commercial property units from defendant buyer, with defendant real estate sales agent engaging in a joint broker arrangement with seller and buyer. Real estate sales agent apparently misrepresented the square footage of the properties, with buyer unable to obtain a purchase price adjustment. Buyer financed the property with a lender, who foreclosed after he stopped making payments. Buyer sued everyone in the chain based on a “joint conspiracy” theory.

            After settling with the seller’s estate, buyer did obtain significant compensatory damages and prejudgment interest against real estate sales agent and his affiliated broker. These defendants appealed (and lost), but buyer cross-appealed claiming that he should have been awarded attorney’s fees under the tort of another doctrine.

            Wrong, said the Court of Appeal. Buyer proceeded on a “joint conspiracy” theory, with it being clear that “tort of another” principles do not apply to joint tortfeasors such as the real estate agent and broker. The lower court’s refusal to award fees was affirmed, with the appellate court relying on the reasoning from Vacco Industries, Inc. v. Van Den Berg, 5 Cal.App.4^th 34, 57 (1992).