When clients ask whether they can recover attorney’s fees in litigation, most lawyers instinctively think about statutory or contractual fee-shifting. But California law recognizes a different, often-overlooked avenue to recovering fees: compensatory damages. In short, where a defendant’s tortious conduct forced the plaintiff into litigation against yet another party, the plaintiff may be able to seek their fees in litigating against that other party, from the former defendant.

Known as the “tort of another” doctrine, this principle opens the door to recovering substantial litigation expenses—not as costs, but as damages.

What Is the Tort of Another Doctrine?

The elements of a “tort of another” doctrine are straightforward enough: a plaintiff may recover attorney’s fees incurred in third-party litigation as damages if:

The defendant committed a legal wrong (typically a tort); and
That wrong made it reasonably necessary for the plaintiff to protect its interests by suing or defending against a third party.

The doctrine emerged from the seminal case of Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618. There, a paid escrow holder’s negligence forced the plaintiff to file a quiet title action against another party. This satellite lawsuit was considered the “natural and proximate consequence” of the escrow holder’s misconduct. The court consequently allowed the plaintiff to recover its attorney’s fees incurred pursuing the satellite claim from the escrow holder. Id.; see also Priority Pharmacy, Inc. v. Serono, Inc., No. 09CV1867 BTM POR, 2010 WL 2011514, at *5 (S.D. Cal. May 20, 2010).

The doctrine also extends to cases where the “tort of another” claimant was forced to defend a suit that was the direct result of the tortfeasor’s negligence or other wrongdoing toward the claimant. See, e.g., Sindell v. Gibson, Dunn & Crutcher, 54 Cal.App.4th 1457, 63 Cal.Rptr.2d 594 (1997) (defendant attorneys, who prepared decedent’s estate plan, were liable to decedent’s children under the “tort of another” doctrine because the children were sued by decedent’s second wife over what property was included in the decedent’s estate solely as a result of the attorneys’ failure to obtain a written consent from the second wife regarding certain gift and sale transfers).

How Does the Law Limit Tort of Another Damages?

The sweep of “tort of another” damages is not without limits. The law makes sure that the remedy does not apply in “every multiple tortfeasor case[.]” For example, in Vacco Indus., Inc. v. Van Den Berg, 5 Cal. App. 4th 34, 57 (1992), the Court clarified that if two tortfeasors are equally at fault, a plaintiff cannot pursue attorney’s fees against one of them for the legal costs incurred in pursuing the other. This ensures that the “tort of another” doctrine does not undermine the “American Rule” that each side bears its own attorney’s fees.

What’s the lesson? Think cause-and-effect. If you represent a plaintiff, develop facts showing how a particular defendant sparked a chain reaction that led to other lawsuits or claims. If you represent a defendant, demonstrate why your client and the “other” party in the plaintiff’s crosshairs are, at most, alleged joint tortfeasors.

Intellectual Property Applications?

The seminal Prentice case involved disputes over real property transactions. Can the logic extend to intellectual property disputes? Yes, according to the matter of Vanguard Recording Soc'y, Inc. v. Fantasy Recs., Inc., 24 Cal. App. 3d 410, 419 (Ct. App. 1972).

Joan Baez and her record label filed a lawsuit against a rival record company that distributed an unauthorized recording of a Baez concert. Baez not only sued the rival record distributors but also sought to enjoin third parties from distributing and selling the bootleg record. The Court of Appeal, applying the tort of another doctrine, permitted Baez to recover her legal fees incurred in pursuing the third parties, directly from the rival record company.

The logic of the Vanguard Recording case can apply to other intellectual property scenarios. For instance, if someone steals trade secrets and uses them for a new employer, the case suggests seeking damages against the original misappropriator for legal fees spent pursuing the employer. This is because the original misappropriator’s wrongful conduct necessitated legal action against the employer in order to protect the plaintiff’s rights and prevent further harm.

Conclusion

The “tort of another” doctrine offers a powerful tool for plaintiffs navigating complex litigation landscapes. The ideal fact pattern “tort of another” pattern has a “cause and effect” logic to it. Search for a single tortfeasor who set into motion a chain reaction that led to litigation with third-parties. By pinpointing the original wrongful act that necessitated additional legal battles, the doctrine—in the right circumstances—appropriately recognizes attorney’s fees as compensatory damages, and bridges gaps where traditional fee-shifting mechanisms fall short. It’s a strategic avenue that not only amplifies recovery but also serves as a potent deterrent against cascading misconduct.

For more information regarding Alto Litigation’s litigation practice, please contact one of Alto Litigation’s partners: Bahram Seyedin-Noor, Bryan Ketroser, Joshua Korr, or Kevin O’Brien.

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