Bartley v. California Association of Realtors

• Decision Date: 16 December 1980
• Citation: 115 Cal.App.3d 930,173 Cal.Rptr. 284
• Court: California Court of Appeals Court of Appeals
• Parties: Ed BARTLEY, Plaintiff and Appellant, v. CALIFORNIA ASSOCIATION OF REALTORS, Defendant and Respondent. Civ. 59883.

Page 284

173 Cal.Rptr. 284

115 Cal.App.3d 930

Ed BARTLEY, Plaintiff and Appellant, v. CALIFORNIA ASSOCIATION OF REALTORS, Defendant and Respondent.

Civ. 59883.

Court of Appeal, Second District, Division 2, California.

Dec. 16, 1980.

Hearing Denied Feb. 17, 1981.

David Barry, Barry & Finley, San Francisco, for plaintiff and appellant.

Moses Lasky, John E. Munter, Terry M. Gordon, Lasky, Haas, Cohler & Munter, San Francisco, for defendant and respondent.

ROTH, Presiding Justice.

Appellant entered into a written contract with Ruth Miller, doing business as Red Carpet Realtors, Inc., which by its terms engaged him as an independent contractor for the purpose of selling, leasing or renting real estate.

He subsequently filed his complaint for injunction, declaratory relief and damages against Ms. Miller, dba Red Carpet Realtors, and the California Association of Realtors (CAR), respondent herein, alleging inter alia that appellant is a licensed real estate salesman in California; that his contract with Red Carpet provided that he would be allowed to use certain of its facilities in exchange for a percentage of the commissions he earned thereunder; that a clause in the agreement required him to transact business only at a commission rate set by Red Carpet; that he and all other salespersons in the Red Carpet office were forced to sign the contract; that each of these persons are independent business entities in active competition with each other for sales; and that appellant was willing and able to effect sales at lesser commissions than those specified by Red Carpet but that such was not permitted by it.

Respecting respondent, it was likewise alleged that: "Defendant California Association of Realtors (CAR) is a statewide trade association of Realtors. Many of the principals of Red Carpet are members of CAR. Of all the real estate firms in California active in residential real estate 95% or more of these firms have principals who are members of CAR. All of the principals of Red Carpet and all of the principals of real estate firms who are members of CAR have conspired together with CAR to fix prices and restrain trade throughout California by suppressing the independent business judgment of their brokers and sales people. CAR has actively assisted this conspiracy. One of the acts of CAR in furtherance of this conspiracy is the publishing of the independent contractor contract, Exhibit A, which plaintiff was forced to sign. This contract is CAR standard form # 1-14. CAR has repeatedly and forcefully urged all of its members throughout California to enter into this contract and nearly all realtors in California have done so."

Finally, it was alleged all of the foregoing resulted in violation of various provisions of the Business and Professions Code which are part of what is denominated the Cartwright Act, in that the same constituted a price fixing conspiracy.

A second cause of action, incorporating the identical allegations, asserted the facts described caused an unreasonable and substantial restraint of trade, also in violation of that statute.

Respondent's special demurrer for uncertainty ¹ and its general demurrer for failure to state a cause of action were both sustained as to each count with leave to amend. Upon appellant's advice to the trial court that he elected not to amend because nothing could be done "to more clearly allege the causes of action in the complaint," the complaint was dismissed with prejudice as to CAR. The appeal is from the order of dismissal.

Various theories are set out in the briefs of the parties in support of and in opposition to the conclusion reached by the trial court. We are satisfied, however, that whatever may be the merits of these contentions, the matter is one which is properly resolved by those considerations respecting an action charging civil conspiracy passed upon in Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 70 Cal.Rptr. 849, 444 P.2d 481. It was there reiterated that:

"The gist of an action charging civil conspiracy is not the conspiracy but the damages suffered. (Citations.) It is the long established rule that a conspiracy, in and of itself, however atrocious, does not give rise to a cause of action unless a civil wrong has been committed resulting in damage. (Citations.) ... The advantage to the pleader in charging a conspiracy is to implicate all participating in the common design and thus fasten liability on him who agreed to the plan to commit the wrong as well as on him who actually carried it out. (Cita...