Bartley v. California Association of Realtors

California Court of Appeal Dec 16, 1980 No. Civ. 59883Published

Before: Roth

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Holding. The court held that the plaintiff failed to state a cause of action for civil conspiracy under the Cartwright Act because the complaint lacked sufficient allegations of specific overt acts by the respondent to establish an unlawful conspiracy.

Issues

Whether the complaint sufficiently alleged a cause of action for civil conspiracy to fix prices and restrain trade under the Cartwright Act.
Whether the respondent's publication and promotion of a standard form contract constitutes sufficient evidence of an unlawful conspiracy.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The gist of an action charging civil conspiracy is not the conspiracy but the damages suffered.”

“General allegations of the existence and purpose of the conspiracy are insufficient and appellants must allege specific overt acts in furtherance thereof.”

“The only specific connection of respondent to the claimed unlawful combination, however, is that it published the contract in issue and that it “repeatedly and forcefully” urged its members to enter into it.”

Opinion

ROTH, P. J.

Appellant entered into a written contract with Ruth Miller, doing business as Red Carpet Realtors, Inc., which by its terms

[933]

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.

Bartley v. California Association of Realtors

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ROTH, P. J.

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