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California Court of Appeal Provides Clarity on “Tort of Another” Doctrine

California Court of Appeal Provides Clarity on “Tort of Another” Doctrine

A recent California Court of Appeal case gave clarity on the evidentiary procedures for asserting and proving the “tort of another” doctrine, which is a lesser-known claim that permits recovery of attorneys’ fees when a party is required to prosecute or defend a lawsuit that involves a tort committed by another person.

Although initially adopted by the California Supreme Court in Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, the procedure for asserting and proving the “tort of another” doctrine remained unsettled for decades. The Court of Appeal, Fourth Appellate District, Division One, issued a recent opinion in an providing guidance for potentially establishing this doctrine in Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504.

In Mai, the defendant/cross-complainant, Hue Thi Dang Mai (“Mai”), was sued for breach of contract regarding the disputed sale of an apartment building owned by Mai. The suit centered on allegations of fraudulent conduct from plaintiff’s real estate agent, which allegedly led the prospective buyer to believe that the purchase was completed. Mai filed a cross-complaint against the real estate agent asserting the “tort of another” doctrine and sought attorney’s fees incurred in defending against the underlying breach of contract claim. During the course of litigation Mai was able to secure a dismissal against the buyer, but the “tort of another” claim proceeded to trial.

The trial court denied Mai’s request for “tort of another” damages based on procedural and evidentiary deficiencies. Specifically, the trial court determined that Mai could not testify about the attorney’s fees she incurred or introduce the redacted invoices because this conduct constitutes inadmissible hearsay. The trial court further denied Mai’s request for judicial notice of documents prepared by her attorney and filed in court for the same reason. Mai was precluded from having her attorney testify because he was not disclosed as a witness prior to trial.

On appeal, the Appellate Court reversed the trial court’s decision and provided a roadmap for proving this claim in future litigation. The Appellate Court first determined that the “tort of another” doctrine permits recovery of attorney’s fees as a measure of compensatory damages, similar to recovery of medical expenses in a personal injury case, as opposed to a cost recovery that is sought via post-trial motions. This distinction is notable because it framed the evidentiary burden that a claimant must make in order to establish a valid claim.

Through this lens, the Appellate Court determined that Mai should have been permitted to testify, based on her personal knowledge, that a bill in a specific amount was received and paid. This redacted bill can further be admitted into evidence for the limited purpose of supporting such testimony and show the amount was reasonable. The Appellate Court further determined that judicial notice of documents prepared by Mai’s attorney and filed in court was permissible because, in this specific context, they were not offered for the trust of the statements made therein, but were instead offered to evidence that work had been performed.