stating that, "Conspiracy is not an independent tort; it cannot create a duty or abrogate an immunity. It allows tort recovery only against a party who already owes the duty and is not immune from liability based on applicable substantive tort law principles."
How later courts described this case
- stating that, "Conspiracy is not an independent tort; it cannot create a duty or abrogate an immunity. It allows tort recovery only against a party who already owes the duty and is not immune from liability based on applicable substantive tort law principles."
- noting that California law imposes an obligation binding every person "to abstain from injuring the person or property of another, or infringing upon any of his rights”; that this “duty is independent of the contract”; and that the “omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty”
- observing that under Califqrnia law, "before one can be held liable for civil conspiracy, he must be capable of being individually liable for the underlying wrong as a matter of substantive tort law. And that requirement, of course, means he must have owed- a legal duty of. care to the plaintiff, one that was breached to the latter's injury.”
- observing that under California law, “before one can be held liable for civil conspiracy, he must be capable of being individually liable for the underlying wrong as a matter of substantive tort law. And that requirement, of course, means he must have owed a legal duty of care to the plaintiff, one that was breached to the latter’s injury.”
Written by the judges who cited it.
The opinion
MOSK, J.
I dissent.
Justice Sullivan, later on this court, wrote for the Court of Appeal in Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 74 [ 35 Cal.Rptr. 652 ], that a cause of action for civil conspiracy requires three allegations: (1) the formation and operation of the conspiracy, (2) the wrongful act or acts done pursuant thereto and (3) the resulting damage. Nowhere in those three requirements is there a limitation on, or any grant of immunity from, liability for anyone participating in a conspiracy.
A number of early cases have held a party to a contract liable for entering into a conspiracy with others to thwart the purposes of the contract. That one *522 of the conspirators had obligations to perform as a contracting party would seem to enhance rather than diminish his culpability.
A leading federal case declared: “If it be an actionable wrong for a third person to interfere in a contract and induce one of the parties thereto to break it to the injury of the other, can it be said it is not equally a wrong for one of the parties to the contract to invite a third party to unite with him and aid him in breaking the contract in such a way as possibly to escape liability in an action for nonperformance and, gaining his consent, to act together in consummating their agreement? There are many refinements in the law, necessarily so, but courts should be as astute in applying well-known principles of justice to remedy wrongs as the wrongdoers are in devising schemes to perpetrate them.” (Motley, Green & Co. v. Detroit Steel & Spring Co. (S.D.N.Y. 1908) 161 F. 389, 397 .)
To the same effect is Luke v. DuPree (1924) 158 Ga. 590 [ 124 S.E. 13, 16-17 ], in which the court anguished over the result: “It is unlawful for others, without lawful excuse, to induce the maker of a contract to break it, or to aid him in its breach; and for the maker and others to combine to break it is a conspiracy, which entitles the other party to the contract to his action against the conspirators for any damage which he may sustain. . . . [I]t may seem anomalous that, if a party to a contract breaks it, and is alone responsible for the breach, he can only be sued in an action ex contractu for the breach; but, if he breaks his contract, and another induces him to break it or conspires with him to break it, or aids him in breaking it, both can be sued ex delicto, on the theory that both are liable for a tort perpetrated in pursuance of a conspiracy to break the contract. But the tendency of modern decisions is to hold them liable as conspirators. This is in harmony with sound morals.”
California followed the prevailing authorities in the country in Wise v. Southern Pacific Co., supra, 223 Cal.App.2d at pages 71-72: “We think that the better reasoned cases hold that an action for conspiracy to induce a breach of contract will lie against a party to the contract who is included among the defendant-conspirators. Such cases, in our view, rest solidly on the principle that all who are involved in the common scheme are jointly and severally responsible for the ensuing wrong. This of course is the broad formative principle in the California cases on conspiracy. ... To hold the contracting party along with his confederates liable in tort seems to us not only to be within the compass of the above principle but also consonant with good morals. We perceive no fatal anomaly in the circumstance that the plaintiff may . . . seek relief in an independent cause of action on the *523 contract. It happens frequently that the wrongful act at the center of the controversy may partake of the nature of both tort and contract and in such event the wronged plaintiff may sue in tort for the wrongful invasion of his rights and also sue for breach of contract.”
It would appear that until today the law was well settled in California on the liability of all parties to a conspiracy. No immunities have been recognized. No free conspiracies have been tolerated.
I realize, of course, that a denial of review by this court does not in and of itself constitute a precedent. However, when this court has consistently over a period of years denied review on a subject, certainly the bench and bar may, with reasonable confidence, rely on the law being well settled. 1 The following cases confirm that if we have not heretofore deemed the law clear on the conspiracy liability of a contracting party, then we have persistently misled the bench and bar:
Shapoff v. Scull (1990) 222 Cal.App.3d 1457, 1465 [ 272 Cal.Rptr. 480 ], “. . . a party to a contract may under some circumstances be held liable in tort for inducing a breach . . . when a party to a contract has conspired with a third party to breach a contract, the contracting party may be held liable in tort as a coconspirator.” Petition for review denied November 15, 1990.
Manor Investment Co. v. F. W. Woolworth Co. (1984) 159 Cal.App.3d 586, 594 [ 206 Cal.Rptr. 37 ], “. . . a contracting party may be held liable for conspiring with third parties to interfere with his own contractual relation.” (Italics in original.) Petition for review denied October 31, 1984.
Rosenfeld, Meyer & Susman v. Cohen (1983) 146 Cal.App.3d 200, 225 [ 194 Cal.Rptr. 180 ], “. . . while a party to a contract may not be held liable in tort for interfering with his own contract by breaking it, he may be held liable in tort for interference with his own contract if he conspires with a third party to breach it.” (Italics in original.) Petition for hearing denied November 9, 1983.
Owens v. Palos Verdes Monaco (1983) 142 Cal.App.3d 855, 872 [ 191 Cal.Rptr. 381 ] (citing with approval Olivet v. Frischling (1980) 104 Cal.App.3d 831, 838 [ 164 Cal.Rptr. 87 ]), “. . . it is accepted, at least in *524 California, that an action for conspiracy to induce a breach of contract will in fact lie against a party to the agreement. . . .” Petition for hearing denied October 10, 1983.
Owens v. Foundation for Ocean Research (1980) 107 Cal.App.3d 179, 185 [ 165 Cal.Rptr. 571 ], “An action for civil conspiracy to induce breach of contract will lie against a party to the contract. . . .” Petition for hearing denied August 27, 1980.
In none of the foregoing cases was a single justice’s vote cast for granting a hearing or review except my lone vote to grant in Owens v. Palos Verdes Monaco, supra. I find it difficult to justify permitting Courts of Appeal to prescribe the law on this subject for more than a decade and now to abruptly change the law merely to insulate some conspirators—here a contracting party—from liability.
I would affirm the judgment of the Court of Appeal.
Respondent’s petitions for a rehearing were denied June 23, 1994. Mosk, J., was of the opinion that the petitions should be granted.
There are other cases reaching the same conclusion, with no petition being made to this court, e.g., California Auto Court Assn. v. Cohn (1950) 98 Cal.App.2d 145, 156 [ 219 P.2d 511 ]:“. . . it is apparent that the plaintiff is not confined to an action ex contractu against the party with whom he contracted.” Also James v. Herbert (1957) 149 Cal.App.2d 741 [ 309 P.2d 91 ].