Fuhrman v. California Satellite Systems

SIMS, J.

I concur with the thoughtful majority opinion except insofar as it concludes plaintiff cannot recover attorneys’ fees as damages in her cause *430 of action for “extortion.” In my view, decisions of our Supreme Court, including Brandt v. Superior Court (1985) 37 Cal.3d 813 [ 210 Cal.Rptr. 211 , 693 P.2d 796 ], compel the conclusion that plaintiff should be entitled to recover, as damages, amounts paid to her attorneys to the extent their services were necessary to make defendants cease their threats of suit. Since plaintiff is entitled to pursue such a claim for damages, plaintiff’s first cause of action for “extortion” should survive. I respectfully dissent from the majority opinion to the extent it reaches contrary conclusions.

In Brandt our Supreme Court ruled a plaintiff could collect, as damages, fees paid by plaintiff to his attorneys and attributable to the attorneys’ effort to obtain benefits wrongfully withheld on an insurance contract. ( 37 Cal.3d at p. 819 .)

The majority conclude Brandt is inapplicable to this case either because Brandt should be limited to disputes over insurance or because recovery of attorneys’ fees in Brandt was on a contract theory. (Maj. opn., ante, p. 427.)

The majority’s latter ground for distinguishing Brandt is wholly unpersuasive. The Brandt opinion makes clear that plaintiff’s cause of action was in tort for breach of the duty of good faith and fair dealing and the entire thrust of the case is that fees paid to plaintiff’s attorney are recoverable as tort damages. (See Brandt, supra, 37 Cal.3d at pp. 816-818.) Brandt’s approval of attorneys’ fees as damages has nothing to do with any contract.

Nor does Brandt suggest that there is anything in its analysis peculiar to insurance disputes. The hard issue in the case is why Code of Civil Procedure section 1021 1 does not prohibit recovery by a plaintiff for fees paid to his attorneys in a tort action. The court’s answer to that question is that where a plaintiff is necessarily required to pay attorneys to make the plaintiff whole as a result of a tort, amounts paid by the plaintiff to the attorneys are compensatory tort damages and not attorneys’ fees: “When an insurer’s tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense. The attorney’s fees are an economic loss—damages—proximately caused by the tort. [Citation.] These fees must be distinguished from recovery of attorney’s fees qua attorney’s fees, such as those attributable to the bringing of the bad faith action itself. What we consider here is attorney’s fees that are recoverable as damages resulting *431 from a tort in the same way that medical fees would be part of the damages in a personal injury action.” (Brandt, supra, 37 Cal.3d at p. 817 .) The court continued, “The fees recoverable, however, may not exceed the amount attributable to the attorney’s efforts to obtain the rejected payment due on the insurance contract. Fees attributable to obtaining any portion of the plaintiff’s award which exceeds the amount due under the policy are not recoverable.” (Id., at p. 819.)

Nothing about this analysis is peculiar to insurance disputes. In my view, Brandt represents an application of the same time-honored principle that led our Supreme Court to authorize recovery of attorney’s fees as damages in actions for false imprisonment (Nelson v. Kellogg (1912) 162 Cal. 621, 623-624 [ 123 P. 1115 ]) and malicious prosecution (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 59 [ 118 Cal.Rptr. 184 , 529 P.2d 608 , 65 A.L.R.3d 878 ]). Because of its nature, some tortious conduct necessarily requires the tort victim to retain an attorney to ameliorate or defend against the wrongful conduct. Thus, in Nelson v. Kellogg, supra, plaintiff was allowed to recover damages for attorney’s fees spent in obtaining her release from a false arrest. ( 162 Cal. at p. 622 .) In Bertero v. National General Corp., supra, plaintiff could recover as damages attorney’s fees paid to defend an action prosecuted maliciously against him. ( 13 Cal.3d at p. 59 .) In Brandt , attorney’s fees were recoverable as damages where the attorney was retained to obtain insurance proceeds tortiously withheld. ( 37 Cal.3d at p. 822 .)

In none of these instances would we reasonably expect a lay person to be able to remedy the tortious conduct without the services of an attorney. 2 Brandt’s express analogy is appropriate: in these cases, attorney’s fees are recoverable as damages for the same reason medical fees are recoverable in personal injury actions. ( 37 Cal.3d at p. 817 .) The tort has made it necessary for the tort victim to obtain expert professional services to cure the wrong.

In the instant case, plaintiff, a lay person, has pleaded that, as a consequence of defendants’ continuing threats to sue her, she had to obtain the services of attorneys. Because the tortious conduct consisted of wrongful threats to sue plaintiff in a court of law, plaintiff was clearly required to obtain the services of attorneys to defend against and ameliorate the continuing tortious conduct. I do not see why, if plaintiff could have recovered, as damages, attorney’s fees spent to defend an action prosecuted malicious *432 ly, she should not recover, as damages, attorney’s fees spent in reasonable efforts to stop the filing of a wrongful action against her. Plaintiff should therefore recover as damages amounts paid to her attorneys as were reasonably necessary to get defendants to stop threatening to sue her.

Since plaintiff should recover, as damages, amounts paid to her attorneys, as outlined above, her cause of action for extortion should survive. As the majority point out, our Supreme Court has recognized that a cause of action in tort, in the nature of duress, is maintainable where one is compelled to pay money to another upon the wrongful threat of prosecution of civil legal action. (See Leeper v. Beltrami (1959) 53 Cal.2d 195, 203-205 [ 1 Cal.Rptr. 12 , 347 P.2d 12 , 77 A.L.R.2d 803 ].) In Leeper , the money was paid under duress to a defendant. (Id., at p. 202.) However, that fact is immaterial. A cause of action consists of a primary right held by a plaintiff, a primary duty devolving upon a defendant, and the delict or wrong done by the defendant. (Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631 [ 219 Cal.Rptr. 117 ]; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, pp. 66-67.) Here plaintiff has a right to live her life free of attempts to extort money from her. She has sufficiently alleged that defendants, by threatening suit without any cause, wrongfully breached a tort duty owed to her. She is entitled to be made whole for her damages regardless of whether her money was paid directly to defendants or to her attorneys. Since plaintiff’s first cause of action sufficiently pleads that she suffered damage as a consequence of defendants’ wrongful attempts to extort money from her, her first cause of action should survive.

Petitions for a rehearing were denied April 25, 1986, and the petitions of all parties for review by the Supreme Court were denied July 17, 1986.

*433 Appendix A

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*434 Appendix B

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Code of Civil Procedure section 1021 provides: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to costs and disbursements, as hereinafter provided.’’

In my view, lay persons are fully capable of settling ordinary personal injury claims. Brandt does not open the door to the recovery of attorney’s fees as damages in personal injury litigation.