California Court of Appeal, Fox Paine & Company, LLC v. Twin City Fire Insurance Company, A168803

Aiding and Abetting (Torts)

 

California Law

 

 

 

 

(…) Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 343, the case cited by the trial court, sets forth the elements of aiding and abetting. We had occasion to apply Nasrawi in George, supra, 71 Cal.App.5th at p.641, there, as here, in a setting involving a claim of breach of fiduciary duty. This is what we said: “Citing CACI, Nasrawi, supra, 231 Cal.App.4th at p. 343... sets forth the four elements of a claim for aiding and abetting, therein a claim involving an alleged breach of fiduciary duty: ‘(1) a third party’s breach of fiduciary duties owed to plaintiff; (2) defendant’s actual knowledge of that breach of fiduciary duties; (3) substantial assistance or encouragement by defendant to the third party’s breach; and (4) defendant’s conduct was a substantial factor in causing harm to plaintiff. (Judicial Council of Cal., Civ. Jury Instns. (CACI) (2014) No. 3610...)’ Appellants’ conclusory allegation the eBay was ‘aware’ of ‘unscrupulous buyers who take unfair advantage of sellers’ is manifestly insufficient. (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1154 [dismissing aiding and abetting claim where plaintiff alleged that defendant generally knew of ‘wrongful or illegal conduct’ but did not plead knowledge of specific alleged fraud]; Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 745.) “Moreover, knowledge alone, even specific knowledge, is not enough to state a claim for aiding and abetting. California law ‘necessarily’ requires that for aiding and abetting liability to attach, a defendant have made ‘“‘a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act.’”’ (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451,1476.) Or as the Court of Appeal put it in Gerard v. Ross (1988) 204 Cal.App.3d 968, 983, an alleged aider and abettor must have ‘acted with the intent of facilitating the commission of that tort.’ Such is lacking here.”

 

 

 

 

California Court of Appeal, Sept. 5, 2024, Fox Paine & Company, LLC v. Twin City Fire Insurance Company, A168803, Certified for Publication)