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March 27, 2026 Get Citation Alerts Download PDF Add Note

Selby v. Stangl CA2/3

California Court of Appeal

• Citations: None known
• Docket Number: B327247

• Precedential Status: Non-Precedential

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

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Combined Opinion

Filed 3/27/26 Selby v. Stangl CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

RIKKI SELBY, B327247

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCV08065)
v.

GREG STANGL,

Defendant and Respondent.

APPEAL from an order of the Superior Court of
Los Angeles County, Gail Killefer, Judge. Affirmed in part and
reversed in part.
Brian J. Jacobs for Plaintiff and Appellant.
Gaglione, Dolan, & Kaplan, Robert T. Dolan and Martina
A. Silas for Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In 2017, Plaintiff Rikki Selby purchased a luxury
condominium in downtown Los Angeles. She subsequently
discovered the property reeked indelibly of cigarette smoke.
Selby sued the seller and the seller’s broker for failing to
sufficiently disclose that the seller had smoked in the unit. The
seller and his broker prevailed in arbitration. Selby then sued
her broker, defendant Greg Stangl. Selby alleged that Stangl’s
failure to discover and disclose the smoke odor before she
purchased the property breached his fiduciary duty; his conduct
and receipt of a brokerage fee constituted financial elder abuse;
and she was entitled to the attorney fees she incurred in the
arbitration as damages, under the tort of another doctrine. The
trial court sustained Stangl’s demurrer on the ground that the
arbitrator’s findings in favor of the seller and his broker
collaterally estopped Selby from pursuing her claims against
Stangl.
We reverse the trial court’s ruling in part. Collateral
estoppel did not bar Selby’s claims against Stangl. We further
determine that Selby’s allegations were sufficient to state a cause
of action for financial elder abuse. However, we affirm the trial
court’s order sustaining the demurrer to Selby’s cause of action
for tort of another, without prejudice to Selby pursuing that
theory of damages as a component of her tort claims.
FACTUAL AND PROCEDURAL BACKGROUND
Selby’s Purchase of the Property
The following facts are taken from the operative pleading.
In 2017, Selby decided to relocate from Orange County to Los
Angeles. Selby was 69 years old and required the use of a
wheelchair.

2
On March 26, 2017, Selby went to an open house for a
luxury condominium in downtown Los Angeles. Stangl did not
accompany her. Selby noticed that a fan was running in the unit
and all the windows and sliding doors were open. Selby returned
for a second viewing with Stangl. She again noticed the fan. The
seller’s broker, Alex LiMandri, said the fan was running to
remove “ ‘stale air.’ ”
On March 27, 2017, Selby entered into an agreement to buy
the property from the seller, Gary Conrad, for $949,000. Stangl
sent Selby the seller’s disclosure documents, including the Seller
Property Questionnaire (SPQ). The SPQ serves to inform buyers
of “ ‘known material or significant items affecting the value or
desirability of the Property and eliminate misunderstandings
about the condition of the Property.’ ” The SPQ instructs sellers
to indicate whether they are aware of specified conditions on the
property by checking “Yes” or “No,” and to explain any “Yes”
answers on the form. In response to whether Conrad was aware
of “ ‘[a]ny occupant of the Property smoking on or in the
Property,’ ” Conrad checked “Yes.” He did not provide a further
explanation. Stangl did not review or discuss the SPQ with
Selby.
Stangl completed and signed an Agent Visual Inspection
Disclosure (AVID) report as part of the transaction. The AVID
report indicated Stangl inspected the property on April 5, 2017.
Stangl noted “ ‘Normal Wear & Tear’ ” in some of the rooms, but
he did not mention any odors. During escrow, Selby executed a
“ ‘Buyer’s Inspection Waiver,’ ” forgoing her right to a certified
inspection of the property.
During her first visit to the property after the close of
escrow, Selby “was met with a strong and pungent cigarette

3
smoke odor.” She had difficulty breathing when in the unit and
twice went to urgent care as a result. She learned that Conrad
“was a life-long, heavy smoker, who smoked inside the Property.”
The smell of cigarette smoke persisted despite multiple cleanings,
including a professional cleaning. Testing confirmed there were
“large quantities of residual nicotine” in the property. After
consulting with professionals, Selby learned that her only option
was to demolish the interior. She asked Conrad to rescind the
sale. Conrad refused.
Selby’s Action Against Conrad and LiMandri
In 2018, Selby sued Conrad and his agent LiMandri,
asserting causes of action for intentional misrepresentation and
negligent misrepresentation against both defendants, fraudulent
concealment and breach of common law duty against LiMandri,
and breach of contract against Conrad. The parties submitted
the matter to arbitration. The arbitration took place over six
days in March 2020.1
In August 2020, the arbitrator issued a final award in
Conrad and LiMandri’s favor. The arbitrator found that neither
Conrad nor LiMandri was liable for intentional
misrepresentation. The arbitrator relied partly on the opinion of
Conrad’s expert. As the award recounted, the expert had opined
that, among other things, “(i) Seller complied with the custom
and practice in completing the SPQ, (ii) Seller’s failure to add an
explanation of the ‘Yes’ answer regarding prior smoking is not a
breach of duty, (iii) Buyer’s agent, Mr. Stangl (who is not a party
to this litigation) breached his duty of care to Buyer, and

1 Conrad passed away in 2019. Before the arbitration, the
court entered an order substituting the personal representative of
his estate and trustees of the family trust in his place.

4
(iv) Buyer did not act reasonably to protect herself, as required by
California law. Specifically, with respect to the ‘Yes’ answer, [the
expert] testified that no further elaboration is required and that
the ‘Yes’ answer was sufficient to alert Buyer of the history of
smoking in the Unit and to ‘handoff’ the burden to her to make
further inquiry if she felt that history was a potential problem.”
The arbitrator found the expert’s conclusion regarding
Conrad’s SPQ response was “the correct reflection of California
law.” Conrad’s failure to explain his “Yes” answer to the smoking
question in the SPQ was “neither false nor duplicitous; Seller did
in fact Smoke in the Unit. Although further elaboration may
have been helpful to [Selby], it was not necessary in order to alert
[Selby] of the history of smoking in the residence.” According to
the arbitrator, the SPQ provided enough information to enable
Selby “to request a detailed explanation or to conduct any further
inquiry she felt warranted.”
The arbitrator further found that Selby’s conduct “fell
below the legal standard imposed by” Civil Code section 2079.5,2
which “makes it clear that a prospective buyer of residential
property has a ‘duty to exercise reasonable care to protect himself
or herself, including those facts which are known to or within the
diligent attention and observation of the buyer or prospective
buyer.’ ” The arbitrator noted that although the disclosure
documents informed Selby of this duty, she “did nothing, literally
nothing, to protect herself from the very condition she now finds
intolerable.” “Buyer (and her agent) failed to request any further
elaboration” about Conrad’s smoking disclosure in the SPQ; Selby

2 Further undesignated statutory references are to the Civil
Code.

5
waived the certified home inspection; and she did not perform a
final walkthrough.
The arbitrator rejected Selby’s claim for negligent
misrepresentation and fraudulent concealment on the ground
that neither Conrad nor LiMandri made any misrepresentations
about the smoking history of the unit, Selby was expressly
advised about the history of smoking in the unit, the use of the
fan was a reasonable act, and there was no evidence that
LiMandri noticed the smoke odor in the unit. As to Selby’s cause
of action against LiMandri for breach of common law duty, the
arbitrator stated that he did “not discern any material difference
between this cause of action and the prior causes of action. To
the extent there is any material difference, the Arbitrator finds
that Broker did not breach any common law duty owed to Buyer.”
Finally, the arbitrator determined Conrad did not breach the
parties’ contract.
Selby’s Action Against Stangl
In 2021, Selby sued Stangl for breach of fiduciary duty.
The complaint alleged that Stangl failed to advise Selby: that she
should ask about the use of the fan during the showings of the
unit; that he detected the odor of cigarette smoke during his
inspection; that the SPQ smoking disclosure was incomplete; or
that Selby should follow up with Conrad about “who smoked
inside the Property and how often such persons smoked inside
the Property.”
In May 2022, Stangl filed a motion for judgment on the
pleadings. He contended the arbitrator’s finding that Selby failed
to protect her own interests precluded her from alleging that
Stangl’s breach caused her damages. The trial court granted the
motion with leave to amend.

6
In August 2022, Selby filed a First Amended Complaint
(FAC) against Stangl, asserting causes of action for breach of
fiduciary duty, financial elder abuse, and tort of another. The
FAC again alleged that Stangl did not review or discuss the SPQ
with Selby, adding that Stangl did not “alert Selby to the ‘Yes’
response [on the SPQ] concerning smoking nor advise her that
the extent of Seller’s smoking should be investigated.” In
addition to alleging that Stangl failed to mention odors in his
AVID report, the FAC further claimed that, based on information
and belief, “Stangl did not in fact inspect the Property, as a result
of which he failed to learn of residual smoking odors in the
Property.” The FAC also alleged: “In view of [the] Seller’s failure
to explain his ‘Yes’ answer . . . , Stangl should have insisted to
Selby that an independent home inspection should be conducted,
but failed to do so.”
The FAC asserted four factual bases for the breach of
fiduciary duty cause of action. Two were repeated from the
initial complaint: that Stangl failed to advise Selby that the SPQ
smoking disclosure was incomplete, and he failed to advise her to
ask additional questions about the history of smoking in the unit.
In addition, the FAC asserted that Stangl breached his fiduciary
duty by failing to inspect the property at all and by failing to
advise against Selby’s waiver of her right to have a certified home
inspection. As to the second cause of action for financial elder
abuse, the FAC alleged that Stangl “financially abused Selby by
taking, secreting, obtaining or retaining title to their brokerage
fee for [his] personal use” in violation of Welfare and Institutions
Code section 15610.30. Finally, as to the third cause of action for
tort of another, the FAC alleged that Selby was entitled to

7
recover from Stangl the attorney fees she incurred in prosecuting
the arbitration against Conrad and LiMandri.
In September 2022, Stangl demurred to the FAC. Stangl
contended collateral estoppel barred all causes of action in Selby’s
FAC for the same reasons it had applied to her original
complaint. Stangl also alleged that the FAC contained a sham
allegation and Selby failed to plead facts sufficient to state a
cause of action for financial elder abuse or tort of another.
In October 2022, the trial court sustained Stangl’s
demurrer without leave to amend.3 The trial court found the
FAC made “no new factual allegations which may support a
finding of liability for Defendant.” The court concluded that the
FAC, like the original complaint, alleged that Selby’s lack of
information about smoking in the property caused her damages.
The court further found the arbitrator’s determinations “that
Plaintiff did not protect her own interest, that the disclosures of
the history of smoking in the Property were sufficient to put
Plaintiff on notice, ‘that further elaboration regarding smoking
would not have made a difference to the outcome, and that
Plaintiff’s knowing waiver of any inspection rights, and warnings
of the possible consequences of her knowing waiver, vitiated her
complaint that she had sustained damages caused by any failure
to disclose facts pertaining to smoking.’ ”
Noting that the arbitrator found that Selby “did in fact
have sufficient information” about smoking on the property, the

3 The court took judicial notice of Selby’s complaint against
Conrad and counsel’s declaration in support of the petition to
confirm the arbitration award in the Conrad action, among other
documents. Counsel’s declaration in support of the petition to
confirm is not part of the record on appeal.

8
trial court concluded the FAC “fail[ed] to explain how the
arbitrator’s findings regarding no causation on the part of Stangl
would allow for findings of new liability here. Plaintiff further
seeks to find new liabilities and duties upon Stangl . . . without
explaining how the arbitrator’s findings regarding the sufficiency
of Stangl’s actions do not entirely do away with new allegations of
liability.” The trial court additionally concluded that “as Plaintiff
was not the prevailing party in arbitration, Plaintiff’s second and
third causes of action are precluded by the arbitration.” The trial
court sustained the demurrer without leave to amend.
In January 2023, the trial court entered an order
dismissing the action with prejudice. Selby timely appealed.4

4 After the appellate briefing was complete, Selby filed a
motion to certify the record on appeal. She contends the trial
court failed to comply with the procedures in California Rules of
Court, rule 8.137, for reviewing, correcting, and certifying her
proposed settled statement. She asks this court to either certify
the proposed statement or direct the trial court to do so. We deny
the motion. “[M]andamus is the proper and exclusive remedy
when a trial judge refuses to settle a statement which it is his
duty to settle . . . .” (Murphy v. Stelling (1903) 138 Cal. 641, 642–
643; Brode v. Goslin (1910) 158 Cal. 699, 701; Randall v.
Mousseau (2016) 2 Cal.App.5th 929, 936 [appellant forfeited
challenge to denial of settled statement by failing to seek writ
review or raise the denial in the opening brief on appeal].) Selby
failed to seek writ review or raise her arguments regarding the
proposed settled statement in her opening brief. Further, Selby’s
proposed settled statement purports to summarize oral
proceedings that are not necessary to her arguments on appeal or
material to our de novo review of the issues.

9
DISCUSSION
I. The Trial Court Erred In Concluding Collateral
Estoppel Bars the FAC
A. Standard of review and legal principles
1. Demurrer
“Because the function of a demurrer is to test the
sufficiency of a pleading as a matter of law, we apply the de novo
standard of review in an appeal following the sustaining of a
demurrer without leave to amend. [Citation.] We assume the
truth of the allegations in the complaint, but do not assume the
truth of contentions, deductions, or conclusions of law. [Citation.]
It is error for the trial court to sustain a demurrer if the plaintiff
has stated a cause of action under any possible legal theory, and
it is an abuse of discretion for the court to sustain a demurrer
without leave to amend if the plaintiff has shown there is a
reasonable possibility a defect can be cured by amendment.”
(California Logistics, Inc. v. State of California (2008) 161
Cal.App.4th 242, 247.)
“On demurrer a court considers the allegations on the face
of the complaint and any matter of which it must or may take
judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) If judicially
noticed records of prior litigation show the complaint is barred by
collateral estoppel, the demurrer may be sustained. [Citations.]
On appeal from the judgment of dismissal following the
sustaining of the demurrer without leave to amend, we review
the order de novo to determine whether as a matter of law the
complaint is barred by collateral estoppel.” (Groves v. Peterson
(2002) 100 Cal.App.4th 659, 667.)

10
2. Collateral estoppel
Collateral estoppel, or issue preclusion, prohibits a party
“who had a full and fair opportunity to litigate the issue in the
first case but lost” from relitigating the same issue in a new
lawsuit to secure a more favorable outcome. (DKN Holdings LLC
v. Faerber (2015) 61 Cal.4th 813, 826; see id. at p. 827.)
Collateral estoppel applies “(1) after final adjudication (2) of an
identical issue (3) actually litigated and necessarily decided in
the first suit and (4) asserted against one who was a party in the
first suit or one in privity with that party.” (Id. at p. 825.) “It is
well settled that an arbitration award may provide the basis for
issue preclusion.” (JPV I L.P. v. Koetting (2023) 88 Cal.App.5th
172, 192 [citing cases].)
It is uncontested that the arbitration award was a final
adjudication and that Selby, the party against whom issue
preclusion is sought, was the plaintiff in the arbitration.
However, the parties dispute whether the issues dispositive to
Selby’s claims against Stangl are identical to the issues presented
and decided in the arbitration.
A prior proceeding concerns an “identical issue” if
“ ‘identical factual allegations’ are at stake . . . , not whether the
ultimate issues or dispositions are the same.” (Lucido v. Superior
Court (1990) 51 Cal.3d 335, 342.) “[T]he factual predicate of the
legal issue decided in the prior case must be sufficient to frame
the identical legal issue in the current case, even if the current
case involves other facts or legal theories that were not
specifically raised in the prior case.” (Textron Inc. v. Travelers
Casualty & Surety Co. (2020) 45 Cal.App.5th 733, 747.)

11
B. Discussion
The trial court concluded that Selby was precluded from
litigating causation as to any causes of action because the
arbitrator found she had sufficient information about smoking in
the property before the purchase, and because the arbitrator
concluded she failed to exercise reasonable care to protect her
own interests. We disagree that these findings were sufficient to
collaterally estop Selby from asserting her claims against Stangl
in this action.
The arbitration did not concern Stangl’s alleged acts or
omissions that are at issue in the instant matter. Stangl was not
a party to the arbitration. The factual background set forth in
the written arbitration award focused on the conduct of Selby,
Conrad, and LiMandri. With respect to Stangl, the award
mentioned only that he visited the unit once with Selby, that
Selby did not ask him for more information about smoking in the
unit, and that he arranged for the unit to be professionally
cleaned after Selby detected the odor. Although the award
indicated Conrad’s expert opined that Stangl breached his duty of
care to Selby, the arbitrator noted that Stangl was “not a party to
this litigation.” The arbitrator had no reason to adopt or reject
the expert’s conclusion about Stangl’s breach in his analysis.
Whether Stangl’s conduct constituted a breach of his fiduciary
duties to Selby was not an issue developed or litigated in the
arbitration.
Stangl contends the trial court’s ruling is nonetheless
correct because both LiMandri’s duty under section 2079 and
Stangl’s fiduciary duty required disclosure of the same material

12
facts to Selby.5 As such, Stangl argues, the arbitrator’s finding
that LiMandri satisfied his duty to disclose material information
to Selby “necessarily constitutes a conclusive finding that Stangl
also obtained and provided Selby with all required information.”
Stangl’s contention finds no support in the law.
Section 2079 provides that a real estate broker who has “a
written contract with the seller to find or obtain a buyer[,] or is a
broker who acts in cooperation with that broker to find and
obtain a buyer,” has a duty to “conduct a reasonably competent
and diligent visual inspection of the property offered for sale and
to disclose to that prospective buyer all facts materially affecting
the value or desirability of the property that an investigation
would reveal . . . .” (§ 2079, subd. (a).) The statute was intended
to “codify and make precise the holding of” Easton v. Strassburger
(1984) 152 Cal.App.3d 90, which first imposed this duty on
sellers’ brokers. (§ 2079.12, subd. (b); Easton, at p. 102.)
Section 2079 therefore “codifies a negligence standard of care for
one particular task that the law imposes on brokers—the
obligation (by a seller’s agent) to visually inspect the property
and disclose the results of that inspection to the buyer.” (Michel
v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 763
(Michel).)

5 The arbitrator found LiMandri did not breach his “common
law duty” to Selby. However, on appeal, the parties do not
suggest LiMandri owed any common law duty to Selby. (See
Robinson v. Grossman (1997) 57 Cal.App.4th 634, 643 [noting no
authorities establish that a seller’s agent has a common law
disclosure duty to the buyers in the context of a negligence
action].) Stangl cites only section 2079 as the source of
LiMandri’s disclosure duty and the basis for the collateral
estoppel argument.

13
“The statutory duties owed by sellers’ brokers under
section 2079 are separate and independent of the duties owed by
brokers to their own clients who are buyers.” (William L. Lyon &
Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294,
1305.) The common law fiduciary duty “is substantially more
extensive than the nonfiduciary duty codified in section 2079”
and “requires the highest good faith and undivided service and
loyalty.” (Field v. Century 21 Klowden-Forness Realty (1998) 63
Cal.App.4th 18, 25 (Field); Michel, supra, 156 Cal.App.4th at
p. 762 [“The fiduciary duty is greater than the negligence
standard of due care under section 2079.”].)
“ ‘The broker as a fiduciary has a duty to learn the material
facts that may affect the principal’s decision. He is hired for his
professional knowledge and skill; he is expected to perform the
necessary research and investigation in order to know those
important matters that will affect the principal’s decision, and he
has a duty to counsel and advise the principal regarding the
propriety and ramifications of the decision. The agent’s duty to
disclose material information to the principal includes the duty to
disclose reasonably obtainable material information. [¶] . . . [¶]
The facts that a broker must learn, and the advice and counsel
required of the broker, depend on the facts of each transaction,
the knowledge and the experience of the principal, the questions
asked by the principal, and the nature of the property and the
terms of sale. The broker must place himself in the position of
the principal and ask himself the type of information required for
the principal to make a well-informed decision. This obligation
requires investigation of facts not known to the agent and
disclosure of all material facts that might reasonably be
discovered.’ (2 Miller & Starr, Cal. Real Estate 2d (1989) Agency,

14
§ 3.17, pp. 94, 96–97, 99, fn. omitted.)” (Field, supra, 63
Cal.App.4th at pp. 25–26; see also id. at pp. 26–27 [fiduciary duty
may require more than the visual inspection required by § 2079,
subd. (a)].) This duty specifically encompasses the broker’s
obligation “to discover and disclose certain defects in the
property.” (Leko v. Cornerstone Bldg. Inspection Service (2001) 86
Cal.App.4th 1109, 1116.)
Thus, that the arbitrator concluded LiMandri satisfied his
duty of disclosure does not categorically mean that Stangl did as
well. Stangl’s fiduciary duty required him to make reasonable
attempts to discover information about material defects on the
property and advise Selby accordingly. Selby’s FAC alleges that
Stangl did not make those efforts—that he did not properly
research or investigate the condition of the property, advise Selby
to inquire further about the smoking disclosure, or recommend
that she proceed with a certified inspection. These questions
were not at issue in the arbitration, and the arbitrator did not
make any findings as to Stangl. The arbitrator’s determinations
regarding LiMandri’s conduct concerned a duty that was distinct
from, and less demanding than, the duty Stangl owed Selby. As a
result, those findings did not resolve the issues raised in Selby’s
FAC.6 (Michel, supra, 156 Cal.App.4th at p. 763.)

6 Stangl cites Padgett v. Phariss (1997) 54 Cal.App.4th 1270,
in support of his argument that a buyer’s agent’s fiduciary duty is
equal to the standard in section 2079. Padgett concluded that the
trial court did not err in applying section 2079 to assess an
agent’s fiduciary duty where the court “properly considered all
the relevant factual and legal circumstances in deciding the scope
of the fiduciary duty involved.” (Padgett, at p. 1283.) Stangl does
not argue, and the record does not reflect, that the arbitrator

15
Further, the arbitrator’s finding that Selby did not exercise
reasonable care consistent with section 2079.5 was not a
conclusive determination that Stangl’s conduct was not a
substantial factor in causing her injuries. (See Mendoza v.
Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405
[proximate cause is element of breach of fiduciary duty claim];
US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th
887, 909 [“A proximate cause of loss or damage is something that
is a substantial factor in bringing about that loss or damage.”].)
Section 2079.5 states: “Nothing in this article relieves a buyer or
prospective buyer of the duty to exercise reasonable care to
protect himself or herself, including those facts which are known
to or within the diligent attention and observation of the buyer or
prospective buyer.” The statute applies only to “the buyer or
prospective buyer” and only in the context of the statutory
scheme in section 2079, et seq., which creates liability for specific
agents working for or with the seller, not liability for a fiduciary
agent of the buyer.
Although the arbitrator found Selby’s failure to follow up
on the SPQ, her waiver of the inspection, and her failure to
perform a final walkthrough demonstrated she had not exercised
reasonable care to protect herself, the arbitrator did not conclude
that Selby alone was personally responsible for her failures such

made any findings based on the facts and circumstances in this
case limiting the scope of Stangl’s fiduciary duty to the standard
set forth in section 2079. In fact, the arbitrator appeared to
decline to address any issues about Stangl’s liability, as he did
not address the merits of the expert’s opinion that Stangl
breached his duty and, instead, noted that Stangl was not a party
to the case. We therefore disagree that Padgett supports Stangl’s
collateral estoppel argument.

16
that Stangl was necessarily absolved of any liability. Indeed, the
arbitrator’s ruling left open the possibility that Selby’s lack of
diligence could have been attributable to Stangl, as he expressly
observed that Selby “and her agent” failed to follow up on
Conrad’s smoking disclosure in the SPQ. The arbitrator was not
called upon to allocate responsibility between Selby and Stangl in
order to resolve whether Conrad and LiMandri were liable.
Thus, nothing in the arbitrator’s findings precludes further
litigation of the issue of whether Stangl caused Selby’s harm.
Stangl also argues that the arbitrator’s finding that neither
Conrad nor his agent had a duty to provide further disclosures
about smoking necessarily means there was nothing Stangl could
have done to obtain additional information. We disagree. The
arbitrator concluded that Conrad’s SPQ response complied with
his disclosure obligations under the law. This does not mandate
the conclusion that other efforts to investigate the history of
cigarette smoking in the unit would have been futile. In fact, the
arbitrator indicated that Conrad’s SPQ response gave Selby
“every opportunity to request a detailed explanation or to conduct
any further inquiry she felt warranted,” suggesting that the
arbitrator believed Selby could have obtained additional details if
she sought them. The arbitrator’s findings did not foreclose
Selby’s allegation that Stangl breached his fiduciary duty by
failing to advise Selby to investigate further, or to do so himself.
Stangl did not argue below or on appeal that Selby’s breach
of fiduciary duty cause of action was subject to demurrer on any
ground other than collateral estoppel.7 Having concluded that

7 Stangl contends the FAC’s claim that he did not inspect the
property is a sham allegation because it directly contradicts the

17
collateral estoppel does not apply, we reverse the trial court’s
order sustaining the demurrer as to the first cause of action.
C. Selby’s second and third causes of action
Because we will affirm the trial court’s ruling if it is correct
on any grounds stated in the demurrer (Fremont Indemnity Co. v.
Fremont General Corp. (2007) 148 Cal.App.4th 97, 111), we
consider the other arguments Stangl asserted as to Selby’s second
cause of action for financial elder abuse and third cause of action
for tort of another.
1. Financial elder abuse
Financial elder abuse occurs “when any person or entity
takes, secretes, appropriates, or retains real or personal property
of an elder adult to a wrongful use or with an intent to defraud,
or both.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174;
Welf. & Inst. Code, § 15610.30, subd. (a)(1).) “A taking is for a
‘wrongful use’ when a party ‘knew or should have known that
[its] conduct is likely to be harmful to the elder . . . adult.’
(§ 15610.30, subd. (b).)” (Bounds v. Superior Court (2014) 229
Cal.App.4th 468, 478–479 (Bounds).) An “elder” includes persons
60 years or older. (Welf. & Inst. Code, § 15750, subd. (b)(2).)
In her second cause of action, Selby alleges that Stangl
financially abused her by taking the brokerage fee even though
he “knew or should have known” that due to her age—69 years
old—and her “declining physical health,” she was “especially

original complaint’s allegation that he inspected the property.
However, Stangl does not argue that Selby’s breach of fiduciary
duty cause of action is insufficiently pled if the purported sham
allegation is disregarded. We therefore do not address Stangl’s
sham pleading contention.

18
dependent” on Stangl’s diligence as her fiduciary, and that his
failure to protect her interests was harmful.
Stangl argues the FAC failed to state a cause of action
because Selby did not pay the brokerage fee; thus, she has not
alleged facts that would demonstrate Stangl took her property.
However, “[c]ourts have found in a number of settings that
commissions paid by a third party to a defendant arising from an
abusive transaction are sufficient to constitute elder abuse.”
(Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14
Cal.App.5th 841, 865 [citing cases]; see ibid. [commission paid by
trust and not plaintiff was property for financial elder abuse
claim]; Zimmer v. Nawabi (E.D.Cal. 2008) 566 F.Supp.2d 1025,
1034 [mortgage broker’s fee obtained due to false statements
about refinance made to plaintiff sufficient for financial abuse of
elder].) Stangl’s commission, even if paid by the seller, may
constitute property for purposes of Selby’s financial elder abuse
cause of action. The allegations were sufficient to withstand
demurrer on that element.8

8 The FAC does not identify who paid Stangl’s commission.
A court must evaluate a demurrer based on the allegations on the
face of the complaint and matters judicially noticeable. (Sierra
Palms Homeowners Assn. v. Metro Gold Line Foothill Extension
Construction Authority (2018) 19 Cal.App.5th 1127, 1132.)
Although the trial court took judicial notice that the seller pays
the commission in a “normal residential real estate transaction,”
that fact failed to establish that Conrad paid Stangl’s commission
in this case. Similarly, Stangl’s argument that the funds used to
pay the commission were never Selby’s property because they
were loan proceeds that were in escrow (see Wood v. Jamison
(2008) 167 Cal.App.4th 156, 165), relies on facts not discernible
from the face of the complaint and not subject to judicial notice.

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Further, Selby has alleged facts that, if true, would be
sufficient to support a finding that Stangl took the brokerage fee
for wrongful use. By alleging that Stangl “knew or should have
known” that she would be particularly dependent on his help,
given her condition, that he acted against her interests, and that
his deficient performance would cause her harm, she sufficiently
alleged that Stangl took the fee for wrongful use. (Bounds, supra,
229 Cal.App.4th at pp. 478–479.) Selby was not required to
allege that Stangl took the funds in bad faith or with an intent to
defraud. (Stebley v. Litton Loan Servicing, LLP (2011) 202
Cal.App.4th 522, 527–528.)
2. Tort of another
In her third cause of action for tort of another, Selby
asserts that she is entitled to recover the attorney fees she
incurred in the arbitration against Conrad and LiMandri because
Stangl’s tortious conduct “forced [her] to protect her interests by
prosecuting” the arbitration.
“A party may not recover attorney fees unless expressly
authorized by statute or contract.” (Brown Bark III, L.P. v.
Haver (2013) 219 Cal.App.4th 809, 818, citing Code Civ. Proc.,
§ 1021 [“Except as attorney’s fees are specifically provided for by
statute, the measure and mode of compensation of attorneys . . .
is left to the agreement, express or implied, of the parties”].) Our
high court established a common law exception to this rule,
holding that “[a] person who through the tort of another has been
required to act in the protection of his interests by bringing or
defending an action against a third person is entitled to recover
compensation for the reasonably necessary loss of time, attorney’s
fees, and other expenditures thereby suffered or incurred.”
(Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618,

20
620.) This exception is also found in Code of Civil Procedure
section 1021.6, which provides that upon motion, a court may
award attorney fees to a party “who prevails on a claim for
implied indemnity” if certain conditions are met, including that
the party was not at fault in the prior action or had a summary
judgment, nonsuit, or directed verdict entered in its favor. (Code
Civ. Proc., § 1021.6.)
Selby asserts that her cause of action is brought under only
the common law doctrine. Stangl does not challenge the third
cause of action on that basis, but contends that Selby cannot
obtain attorney fees under the common law doctrine of tort of
another because she did not prevail in the arbitration.9 Yet,
existing authority indicates a party is not necessarily required to
prevail in a lawsuit with a third party to recover attorney fees
under the theory.
Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498
(Gray) is instructive. There, the plaintiff offered to purchase a
parcel of land through the defendant brokerage company’s real
estate agent. (Id. at p. 502.) Seven months after informing the
plaintiff that the sellers had accepted his offer, the agent told the

9 Some courts consider the statute to have supplanted the
common law doctrine of tort of another, while others continue to
recognize the common law doctrine. (Compare Sooy v. Peter
(1990) 220 Cal.App.3d 1305, 1310 (Sooy) [citing only the common
law doctrine of tort of another with no reference to Code Civ.
Proc., § 1021.6] with John Hancock Mutual Life Ins Co. v.
Setser (1996) 42 Cal.App.4th 1524, 1531–1535 [Code Civ. Proc.,
§ 1021.6 governs all claims under tort of another doctrine].)
Because the parties do not dispute the existence of a common law
doctrine, we do not consider the issue of whether it has survived
the enactment of Code of Civil Procedure section 1021.6.

21
plaintiff that the sellers had decided not to sell the property.
(Ibid.) Plaintiff sued the sellers and the brokerage company for
specific performance and damages for fraud. (Ibid.) The trial
court found the agent had falsely represented to the plaintiff that
the sellers accepted his offer and the brokerage company, as the
agent’s employer, had violated its fiduciary duty. (Ibid.) The
court awarded the plaintiff damages, including attorney fees.
(Ibid.) It rejected the plaintiff’s claims against the sellers
because they had never accepted the plaintiff’s offer and bore no
fault. (Id. at p. 503.)
The California Supreme Court affirmed the trial court’s
attorney fee award to the plaintiff under the tort of another
doctrine. (Gray, supra, 35 Cal.3d at p. 507.) It reasoned: “If [the
agent] had not first falsely notified plaintiff that his offer had
been accepted and several months later told him that the sellers
declined to sell the property, plaintiff would not have incurred
attorney fees in seeking to obtain the property in a suit for
specific performance against the sellers. Thus, [the agent’s]
misrepresentation was the direct cause of plaintiff’s action for
specific performance against the sellers.” (Ibid.) The court
remanded the action for the trial court to determine what
proportion of the fee award was attributable to the plaintiff’s
action against the sellers. (Id. at p. 509.)
Thus, in Gray, the plaintiff’s failure to prevail in his
specific performance action against the sellers did not prevent
him from recovering the attorney fees he incurred in that lawsuit
from the brokerage company. The relevant question was only
whether the brokerage company’s conduct, through the acts of its
agent, caused the plaintiff to pursue specific performance and
incur the fees incident to that litigation. Stangl does not

22
distinguish Gray or cite other authority to support his contention
that Selby’s loss in arbitration against Conrad and LiMandri bars
her from recovering the fees from Stangl under a tort of another
theory.
Stangl also contends Selby has failed to establish that tort
of another may be pled as a separate cause of action. The
common law line of authority characterizes the “tort of another”
as “an application of the usual measure of tort damages. The
theory of recovery is that the attorney fees are recoverable as
damages resulting from a tort in the same way that medical fees
would be part of the damages in a personal injury action.” (Sooy,
supra, 220 Cal.App.3d at p. 1310.) The “ ‘third party tort
exception’ to the rule that parties bear their own attorney fees is
not really an ‘exception’ at all but an application of the usual
measure of tort damages.” (Ibid.)
Although Selby’s FAC styles tort of another as a cause of
action, her opening brief describes her request for fees as “part of
her claim for tort damages,” and she does not contend in her
reply brief that tort of another constitutes an independent cause
of action.
We agree that Selby’s invocation of “tort of another”
damages as an independent cause of action rendered the third
cause of action subject to demurrer. However, we also conclude
that Selby has sufficiently pled tort of another as a theory of
damages. The FAC states that Stangl’s “tortious actions” forced
Selby to “protect her interests” by initiating the arbitration
against Conrad and LiMandri. This adequately alleges that her
request for attorney fees under the tort of another doctrine is
derivative of her other causes of action. We therefore affirm the
trial court’s ruling sustaining the demurrer as to the third cause

23
of action as an independent basis for relief, but we hold that
Selby has adequately alleged “tort of another” as a theory of
damages in connection with her other claims.
DISPOSITION
The trial court’s ruling sustaining Stangl’s demurrer is
affirmed in part and reversed in part. On remand, the trial court
is directed to vacate its order dismissing the action and issue a
new order overruling the demurrer as to Selby’s first cause of
action for breach of fiduciary duty and second cause of action for
financial elder abuse. We affirm the trial court’s order sustaining
the demurrer as to the third cause of action for tort of another,
without prejudice to Selby seeking to recover attorney fees as
damages under that theory in connection with her tort claims.
Selby to recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

EGERTON, J.

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