Lead Opinion
Opinion
We granted review to reexamine, in light of divergent rulings from the Court of Appeal and a doctrinal evolution among other state high courts, the elements of the tort variously known as interference with “prospective economic advantage,” “prospective contractual relations,” or “prospective economic relations,” and the allocation of the burdens of proof between the parties to such an action. We conclude that those Court of Appeal opinions requiring proof of a so-called “wrongful act” as a component of the cause of action, and allocating the burden of proving it to the plaintiff, are the better reasoned decisions; we accordingly adopt that analysis as our own, disapproving language in prior opinions of this court to the contrary. Such a requirement, incorporating the views of several other jurisdictions, much of the Restatement Second of Torts, the better reasoned decisions of the Court of Appeal, and the views of leading academic authorities, sensibly redresses the balance between providing a remedy for predatory economic behavior and keeping legitimate business competition outside litigative bounds. We do not in this case, however, go beyond approving the requirement of a showing of wrongfulness as part of the plaintiff’s case; the case, if any, to be made for adopting refinements to that element of the tort—requiring the plaintiff to prove, for example, that the defendant’s conduct amounted to an independently tortious act, or was a species of anticompetitive behavior proscribed by positive law, or was motivated by unalloyed malice—can be considered on another day, and in another case.
In this case, after the trial court modified the standard jury instruction to require the plaintiff automobile dealer to show that defendant Toyota’s interference with his business relationships was “wrongful,” the jury returned a verdict for Toyota. The Court of Appeal reversed the ensuing judgment and ordered a new trial on the ground that plaintiff’s burden of proof did not encompass proof of a “wrongful” act and that the modified jury instruction was therefore erroneous. Given our conclusion that the plaintiff’s
I
John Della Penna, an automobile wholesaler doing business as Pacific Motors, brought this action for damages against defendant Toyota Motor Sales, U.S.A., Inc., and its Lexus division, alleging that certain business conduct of defendants both violated provisions of the Cartwright Act, California’s state antitrust statute (Bus. & Prof. Code, § 16700 et seq.), and constituted an intentional interference with his economic relations. The impetus for Della Penna’s suit arose out of the 1989 introduction into the American luxury car market of Toyota’s Lexus automobile. Prior to introducing the Lexus, the evidence at trial showed, both the manufacturer, Toyota Motor Corporation, and defendant, the American distributor, had been concerned about the possibility that a resale market might develop for the Lexus in Japan. Even though the car was manufactured in Japan, Toyota’s marketing strategy was to bar the vehicle’s sale on the Japanese domestic market until after the American rollout; even then, sales in Japan would only be under a different brand name, the “Celsior.” Fearing that auto wholesalers in the United States might reexport Lexus models back to Japan for resale, and concerned that, with production and the availability of Lexus models in the American market limited, reexports would jeopardize its fledgling network of American Lexus dealers, Toyota inserted in its dealership agreements a “no export” clause, providing that the dealer was “authorized to sell [Lexus automobiles] only to customers located in the United States. [Dealer] agrees that it will not sell [Lexus automobiles] for resale or use outside the United States. [Dealer] agrees to abide by any export policy established by [distributor].”
Following introduction into the American market, it soon became apparent that some domestic Lexus units were being diverted for foreign sales, principally to Japan. To counter this effect, Toyota managers wrote to their retail dealers, reminding them of the “no-export” policy and explaining that exports for foreign resale could jeopardize the supply of Lexus automobiles available for the United States market. In addition, Toyota compiled a list of “offenders”—dealers and others believed by Toyota to be involved heavily in the developing Lexus foreign resale market—which it distributed to Lexus dealers in the United States. American Lexus dealers were also warned that doing business with those whose names appeared on the “offenders” list might lead to a series of graduated sanctions, from reducing
During the years 1989 and 1990, plaintiff Della Penna did a profitable business as an auto wholesaler purchasing Lexus automobiles, chiefly from the Lexus of Stevens Creek retail outlet, at near retail price and exporting them to Japan for resale. By late 1990, however, plaintiff’s sources began to dry up, primarily as a result of the “offenders list.” Stevens Creek ceased selling models to plaintiff; gradually other sources declined to sell to him as well.
In February 1991, plaintiff filed this lawsuit against Toyota Motor Sales, U.S.A., Inc., alleging both state antitrust claims under the Cartwright Act and interference with his economic relationship with Lexus retail dealers. At the close of plaintiff’s case-in-chief, the trial court granted Toyota’s motion for nonsuit with respect to the remaining Cartwright Act claim (plaintiff had previously abandoned a related claim—unfair competition—prior to trial). The tort cause of action went to the jury, however, under the standard BAJI instructions applicable to such claims with one significant exception. At the request of defendant and over plaintiff’s objection, the trial judge modified BAJI No. 7.82—the basic instruction identifying the elements of the tort and indicating the burden of proof—to require plaintiff to prove that defendant’s alleged interfering conduct was “wrongful.”
The jury returned a divided verdict, nine to three, in favor of Toyota. After Della Penna’s motion for a new trial was denied, he appealed. In an unpublished disposition, the Court of Appeal unanimously reversed the trial court’s judgment, ruling that a plaintiff alleging intentional interference with economic relations is not required to establish “wrongfulness” as an element of its prima facie case, and that it was prejudicial error for the trial court to have read the jury an amended instruction to that effect. The Court of Appeal remanded the case to the trial court for a new trial; we then granted Toyota’s petition for review and now reverse.
A
Although legal historians have traced the origins of the so-called “interference torts" as far back as the Roman law, the proximate historical impetus for their modem development lay in mid- 19th century English common law. (See, e.g., Sayre, Inducing Breach of Contract (1923) 36 Harv. L.Rev. 663; Note, Tortious Interference With Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort (1980) 93 Harv. L.Rev. 1510.) The opinion of the Queen’s Bench in Lumley v. Gye (1853) 2 E1. & B1. 216 [118 Eng.Rep. 749], a case that has become a standard in torts casebooks, is widely cited as the origin of the two torts —interference with contract and its sibling, interference with prospective economic relations
In an action on the case, the theater owner alleged that Gye, the owner of a rival theater, knowing of the Wagner-Lumley agreement, “maliciously" interfered with the contract by “enticing” Wagner to abandon her agreement with Lumley and appear at Gye’s theater. Gye’s demurrer to the complaint was overruled by the trial court, a mling that was affirmed by the justices of the Queen’s Bench on the then somewhat novel grounds that (1) “enticing” someone to leave his or her employment was not limited to disrupting the relationship between master and servant but applied to a “dramatic artiste” such as Miss Wagner, and (2) “wrongfully and maliciously, or, which is the same thing, with notice, interrupt[ing]’’ a personal service contract, regardless of the means the defendant employed, was an actionable wrong. (2 E1. & B1. at p. 224, per Crompton, J.)
The opinion in Lumley v. Gye, supra, 2 E1. & B1. 216 dealt, of course, with conduct intended to induce the breach of an existing contract, not conduct intended to prevent or persuade others not to contract with the plaintiff. That such an interference with prospective economic relations might itself be tortious was confirmed by the Queen’s Bench over the next 40 years. In
One such supplier of the builder, Temperton, sued the union’s leadership, alleging that his business had been injured by breaches of supply contracts and the refusal of others to do business with him, all as a result of the union’s threats. A unanimous Queen’s Bench upheld the jury’s verdict for the plaintiff, reasoning in part on the authority of Lumley v. Gye, supra, 2 E1. & B1. 216, that in the words of Lord Esher, the Master of the Rolls, “the distinction . . . between the claim for inducing persons to break contracts already entered into . . . and . . . inducing persons not to enter into contracts . . . can[not] prevail.” (Temperton, supra, 1 Q.B. at p. 728.)
“There was the same wrongful intent in both cases, wrongful because malicious,” Lord Esher wrote. “There was the same kind of injury to the plaintiff. It seems rather a fine distinction to say that, where a defendant maliciously induces a person not to carry out a contract already made with the plaintiff and so injures the plaintiff, it is actionable, but where he injures the plaintiff by maliciously preventing a person from entering into a contract with the plaintiff, which he would otherwise have entered into, it is not actionable.” (Temperton, supra, 1 Q.B. at p. 728.)
As a number of courts and commentators have observed, the keystone of the liability imposed in Lumley v. Gye, supra, 2 El. & Bl. 216, and Temper-ton, supra, 1 Q.B. 715, to judge from the opinions of the justices, appears to have been the “malicious” intent of a defendant in enticing an employee to breach her contract with the plaintiff, and in damaging the business of one who refused to cooperate with the union in achieving its bargaining aims. While some have doubted whether the use of the word “malicious” amounted to anything more than an intent to commit an act, knowing it would harm the plaintiff (see, e.g., Dobbs, Tortious Interference With Contractual Relationships (1980) 34 Ark. L.Rev. 335, 347, fn. 37), Dean Keeton, assessing the state of the tort as late as 1984, remarked that “[w]ith intent to interfere as the usual basis of the action, the cases have turned almost entirely upon the defendant’s motive or purpose and the means by which he has sought to accomplish it. As in the cases of interference with contract, any manner of intentional invasion of the plaintiff’s interests may
It was, legal historians have suggested, this early accent on the defendant’s “intentionality” that was responsible for allying the interference torts with their remote relatives, intentional torts of a quite different order— battery, for example, or false imprisonment. More than one account of the rise of the tort has relied on Lord Bowen’s statement in an interference with contract case that “intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that person’s property or trade, is actionable if done without just cause or excuse.” (Mogul Steamship Co. v. McGregor, Gow & Co. (1889) 23 Q.B.D. 598, 613.)
One consequence of this superficial kinship was the assimilation to the interference torts of the pleading and burden of proof requirements of the “true” intentional torts: the requirement that the plaintiff need only allege a so-called “prima facie tort” by showing the defendant’s awareness of the economic relation, a deliberate interference with it, and the plaintiff’s resulting injury. (See, e.g., Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle (1959) 54 Nw. U. L.Rev. 563; Note, The Prima Facie Tort Doctrine (1952) 52 Colum. L.Rev. 503.
These and related features of the economic relations tort and the requirements surrounding its proof and defense led, however, to calls for a reexamination and reform as early as the 1920’s. Tracing the origins and the current
Because the plaintiff’s initial burden of proof was such a slender one, amounting to no more than showing the defendant’s conscious act and plaintiff’s economic injury, critics argued that legitimate business competition could lead to time consuming and expensive lawsuits (not to speak of potential liability) by a rival, based on conduct that was regarded by the commercial world as both commonplace and appropriate. The “black letter” rules of the Restatement of Torts surrounding the elements and proof of the tort, some complained, might even suggest to “foreign lawyers reading the Restatement as an original matter [that] the whole competitive order of American industry is prima facie illegal.” (Statement of Professor Carl Auerbach at ALI Proceedings, quoted in Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine (1982) 49 U. Chi. L.Rev. 61, 79, fn. 89; see also Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law (1993) 77 Minn. L.Rev. 1097, 1122 [“In an economic system founded upon the principle of free competition, competitors should not be liable in tort for seeking a legitimate business advantage.”].)
Calls for a reformulation of both the elements and the means of establishing the economic relations tort reached a height around the time the Restatement Second of Torts was being prepared for publication and are reflected in its departures from its predecessor’s version. Acknowledging criticism, the American Law Institute discarded the prima facie tort requirement of the first Restatement. A new provision, section 766B, required that the defendant’s conduct be “improper,” and adopted a multifactor “balancing” approach, identifying seven factors for the trier of fact to weigh in determining a defendant’s liability. The Restatement Second of Torts, however, declined to take a position on the issue of which of the parties bore the burden of
B
In the meantime, however, an increasing number of state high courts had traveled well beyond the Restatement Second’s reforms by redefining and otherwise recasting the elements of the economic relations tort and the burdens surrounding its proof and defenses. In Top Serv. Body Shop, Inc. v. Allstate Ins. Co. (1978)
Recognizing the force of these criticisms, the court went on to hold in Top Service, supra,
Four years later, the views of the Oregon Supreme Court in Top Service, supra,
The Utah Supreme Court went on, however, to reject the alternative, multifactor approach adopted by the Restatement Second: “We concur in the Restatement (Second)'s rejection of the prima facie tort approach because it leaves too much uncertainty about the requirements for a recognized privilege and the defendant’s burden of pleading and proving these and other matters. [Citation.]. But we also reject the Restatement (Second)’s definition of the tort because of its complexity. We seek a better alternative.” (
Over the past decade or so, close to a majority of the high courts of American jurisdictions have imported into the economic relations tort variations on the Top Service line of reasoning, explicitly approving a rule that requires the plaintiff in such a suit to plead and prove the alleged interference was either “wrongful,” “improper,” “illegal,” “independently tortious” or some variant on these formulations. Among others, the high courts of New Mexico (Anderson v. Dairy land Ins. Co. (1981)
Ill
In California, the development of the economic relations tort has paralleled its evolution in other jurisdictions. For many years this court declined to adopt the holding of Lumley v. Gye, supra, 2 El. & Bl. 216, on the ground that, as we reasoned in Boyson v. Thorn (1893)
In the aftermath of Imperial Ice Co. v. Rossier, supra,
California cases thus reflected the historical origins and development of the tort, especially as it stood prior to the revisions of the Restatement Second and the concurrent evolution in the case law. In Zimmerman v. Bank of America (1961)
This court endorsed the reasoning of Zimmerman v. Bank of America, supra,
Our opinion in Buckaloo, supra,
“In California,” we went on to observe, “privilege or justification is an affirmative defense, and the lack thereof need not be shown by the original pleader." (14 Cal.3d at pp. 827-828.) A note of caution, however, crept into our formulation of principles at this point. “Perhaps the most significant privilege or justification for interference with a prospective business advantage is free competition,” we wrote, “Ours is a competitive economy in which business entities vie for economic advantage. In a sense, all vendees are potential buyers of the products and services of all sellers in a given line, and success goes to him who is able to induce potential customers not to deal with a competitor.” (
In Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984)
Although our opinions following Seaman’s, supra,
“The torts of inducing breach of contract and interference with prospective advantage have been criticized,” we wrote, “as protecting the secure enjoyment of contractual and economic relations at the expense of our interest in a freely competitive economy. [Citation.] We have been cautious in defining the interference torts, to avoid promoting speculative claims. . . . Given the criticism of these causes of action and the dangers inherent in imposing tort liability for competitive business practices, we have no motivation to expand these torts so that they begin to threaten the right of free access to the courts.” (Bear Stearns, supra, 50 Cal.3d at pp. 1136-1137, fn. omitted.)
Meanwhile, developments in the Court of Appeal and in the practical administration of such claims in the trial courts had, if anything, outdistanced our own formulations of the elements of the tort and the allocation of the burden of proof in at least two respects. First, several Court of Appeal opinions appeared to engraft onto the elements of the plaintiffs cause of action allegations and proof that the defendant’s conduct was “wrongful” or, as the Court of Appeal said in Tri-Growth Centre City, Ltd. v. Silldorf Burdman, Duignan & Eisenberg (1989)
Second, in 1990, BAJI, the Book of Approved Jury Instructions widely used by trial judges in civil cases, relying on the Restatement Second of Torts and Mr. Witkin’s account of the tort, included an instruction providing that a defendant in an economic relations tort case could defeat liability by showing that its conduct was not independently “wrongful.” (Cf. BAJI No. 7.86.1 (8th ed. 1994) Use Note & Com.)
These developments, of course, closely reflect a nearly concurrent change in views both within the American Law Institute and in other jurisdictions. In the face of those twin lines of development, we are thus presented with the opportunity to consider whether to expressly reconstruct the formal elements of the interference with economic relations tort to achieve a closer alignment with the practice of the trial courts, emerging views within the Court of Appeal, the rulings of many other state high courts, and the critiques of leading commentators. We believe that we should.
In searching for a means to recast the elements of the economic relations tort and allocate the associated burdens of proof, we are guided by an overmastering concern articulated by high courts of other jurisdictions and legal commentators: the need to draw and enforce a sharpened distinction between claims for the tortious disruption of an existing contract and claims that a prospective contractual or economic relationship has been interfered with by the defendant. Many of the cases do in fact acknowledge a greater array of justificatory defenses against claims of interference with prospective relations. Still, in our view and that of several other courts and commentators, the notion that the two torts are analytically unitary and derive from a common principle sacrifices practical wisdom to theoretical insight, promoting the idea that the interests invaded are of nearly equal dignity. They are not.
The courts provide a damage remedy against third party conduct intended to disrupt an existing contract precisely because the exchange of promises resulting in such a formally cemented economic relationship is deemed worthy of protection from interference by a stranger to the agreement. Economic relationships short of contractual, however, should stand on a different legal footing as far as the potential for tort liability is reckoned. Because ours is a culture firmly wedded to the social rewards of commercial contests, the law usually takes care to draw lines of legal liability in a way that maximizes areas of competition free of legal penalties.
A doctrine that blurs the analytical line between interference with an existing business contract and interference with commercial relations less than contractual is one that invites both uncertainty in conduct and unpredictability of its legal effect. The notion that inducing the breach of an existing contract is simply a subevent of the “more inclusive” class of acts that interfere with economic relations, while perhaps theoretically unobjectionable, has been mischievous as a practical matter. Our courts should, in short, firmly distinguish the two kinds of business contexts, bringing a greater solicitude to those relationships that have ripened into agreements, while recognizing that relationships short of that subsist in a zone where the rewards and risks of competition are dominant.
' Beyond that, we need not tread today. It is sufficient to dispose of the issue before us in this case by holding that a plaintiff seeking to recover for
Conclusion
We hold that a plaintiff seeking to recover for an alleged interference with prospective contractual or economic relations must plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plaintiff’s expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself. The judgment of the Court of Appeal is reversed and the cause is remanded with directions to affirm the judgment of the trial court.
Lucas, C. J., Kennard, J., Baxter, J., George, J., and Werdegar, J., concurred.
Notes
The standard instruction governing “intentional interference with prospective economic advantage,” BAJI No. 7.82, describes the essential elements of the claim as (1) an economic relationship between the plaintiff and another, “containing a probable future economic benefit or advantage to plaintiff,” (2) defendant’s knowledge of the existence of the relationship, (3) that defendant “intentionally engaged in acts or conduct designed to interfere with or disrupt” the relationship, (4) actual disruption, and (5) damage to the plaintiff as a result of defendant’s acts. The modification sought by defendant and adopted by the trial court consisted in adding the word “wrongful” in element (3) between the words “in” and “acts.” The trial court also read to the jury plaintiffs special jury instruction defining the “wrongful acts” required to support liability as conduct “outside the realm of legitimate business transactions .... Wrongfulness may lie in the method used or by virtue of an improper motive.”
Throughout this opinion, in an effort to avoid both cumbersome locutions and clumsy acronyms (“IIPEA”), we use the phrase “interference with economic relations” to refer to the tort generally known as “intentional interference with prospective contractual or economic relations” and to distinguish it from the cognate form, “intentional interference with contract.”
A century or so ago, the notion of the “prima facie tort” was regarded by the leading legal authorities of the day as a principle vital to the reconstitution of the jurisprudence of civil wrongs in the aftermath of the disintegration of the old common law forms of action. Competing formulations of “intentionality,” as an aspect of the prima facie wrong, were offered by such luminaries of their day as Dean Pound (see 3 Pound Jurisprudence (1959) p. 9), and by Justice Holmes. (See Aikens v. Wisconsin (1904)
Respondent contends that any change in the rules governing the plaintiff’s pleading and burden of proof requirements in an economic relations tort context should be prospective only in application. He relies on the argument that at the time this case was tried, the law was settled that a plaintiff had no such burden of pleading or proving that the defendant’s conduct was wrongful. The “general rule,” of course, is that “a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation.” (Peterson v. Superior Court (1982)
To the extent that language in Buckaloo, supra,
Concurrence Opinion
I concur in the judgment.
In his complaint, plaintiff John Della Penna (hereafter Della Penna) brought various claims against defendant Toyota Motor Sales, U.S.A., Inc. (hereafter Toyota), concerning his business relationship with dealers of its
Like the majority, I would reverse the Court of Appeal’s judgment in this regard. As I shall explain, I believe that any instructional error was not prejudicial.
I
With the dissonance caused by such terms as “malice,” “justification,” and “privilege” (see, e.g., Rest.2d Torts, ch. 37, introductory note, pp. 4-6), the common law on the tort of intentional interference with prospective economic advantage, both in American jurisdictions generally and in California specifically, is fast approaching incoherence. (See, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law (1993) 77 Minn. L.Rev. 1097, 1099 [stating that “tortious interference law suffers from considerable doctrinal confusion”]; id. at pp. 1120-1137 [analyzing the tort of intentional interference with prospective economic advantage]; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine (1982) 49 U. Chi. L.Rev. 61, 61 [noting the “absence of a coherent doctrine”]; see also Note, Tortious Interference With Contract: A Reassertion of Society’s Interest in Commercial Stability and Contractual Integrity (1981) 81 Colum. L.Rev. 1491, 1506 [arguing, with a citation to J’Aire Corp. v. Gregory (1979)
Before the Court of Appeal decided the seminal case of Zimmerman v. Bank of America (1961)
A
One reason for the common law’s near incoherence on the tort of intentional interference with prospective economic advantage may be discovered in its doctrinal basis.
During the second half of the 19th century and the first half of the 20th, as the times pressed hard on both law and society, common law courts, first in England and then in the United States, developed what has become known as the “prima facie tort doctrine.” (Note, The Prima Facie Tort Doctrine (1952) 52 Colum. L.Rev. 503, 503; Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle (1959) 54 Nw. U. L.Rev. 563, 563-566.) The traditional source was the old action on the case. (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 508; Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 563.) The analytical object was a framework “capable of assisting comprehension and guiding an internal systematic development of the subject matter” (Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 563), to the end that “principle rather than precedent” might govern (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 503; accord, Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 563).
In Athens v. Wisconsin (1904)
In the middle of this century, Dean Pound made the following restatement: “One who intentionally does anything which on its face is injurious to another is liable to repair the resulting damage unless he can establish a liberty or privilege by identifying his claim to act as he did with some recognized public or social interest.” (3 Pound, Jurisprudence (1959) p. 9.)
The “elements” of the “prima facie tort” have been said to be three in number.
The first comprises intent and the likelihood of harm. Under one view, there must be “intent to do the act complained of,” which in turn must be of a sort as is “calculated in the ordinary course of events to cause” the harm “complained of.” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at pp. 505, 508.) There need not be an intent to cause harm. (Id. at p. 505; see Carpenter, Interference With Contract Relations (1928) 41 Harv. L.Rev. 728, 735 [stating that “[m]alice in the sense of bad motive is not a requisite”].) Under another view, however, intent to cause harm is indeed necessary. (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at pp. 506-507.)
The second is harm. “Since prima facie tort law is an outgrowth of the action on the case, its primary purpose is remedial. . . .” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 508.) As a result, harm is necessary: it embraces pecuniary loss and perhaps other loss as well. (Id. at
The third is justification or privilege. “The interests of the parties and that of society form the matrix out of which the decision” whether the defendant’s conduct is justified or privileged “is rendered.” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 509; see Carpenter, Interference With Contract Relations, supra, 41 Harv. L.Rev. at pp. 745-762 [speaking expressly of the tort of intentional interference with prospective economic advantage, among others].) Generally, “an infinite variety of situations can develop, and each case must turn on its special facts.” (Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 510.) So far as pleading and proof are concerned, the issue of justification or privilege has traditionally operated as an affirmative defense for the interfering party as defendant, and not as a part of the cause of action for the interfered-with party as plaintiff. (Dobbs, Tortious Interference With Contractual Relationships (1980) 34 Ark. L.Rev. 335, 338, fn. 19; cf. Buckaloo v. Johnson, supra, 14 Cal.3d at pp. 827-828 [same as to the tort of intentional interference with prospective economic advantage].)
It is the prima facie tort doctrine that is the basis of the tort of intentional interference with prospective economic advantage. (E.g., Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 337-338; Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at pp. 504-505, 508 [speaking impliedly of the tort of intentional interference with prospective economic advantage]; Carpenter, Interference With Contract Relations, supra, 41 Harv. L.Rev. at pp. 732-762 [speaking expressly of this tort among others]; see, e.g., Diaz v. Kay-Dix Ranch (1970)
That fact is apparent in section 766 of the first Restatement of Torts. It provides that, generally, “one who, without a privilege to do so, induces or otherwise purposely causes a third person not to” “enter into or continue a business relation with another” “is liable to the other for the harm caused thereby.”
The prima facie tort doctrine, however, is problematic. Very much so. The question has been asked whether it “has served any purpose other than to provide a sonorous apothegm better suited to opinion writing than decision
The prima facie tort doctrine exhibits a general deficiency. Perhaps it has resulted in a kind of “internal systematic development of the subject matter.” (Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle, supra, 54 Nw. U. L.Rev. at p. 563.) But if it has, it has done so by sacrificing an external connection to society. “The idea is that ‘intentional infliction of harm’ is, prima facie, a tort. The problem is that almost any legitimate act can cause ‘intentional’ harm . . . .” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 337-338, fn. 18.) Therefore, “[i]t must be understood that intentional infliction of harm . . . covers a multitude of desirable acts as well as a multitude of sins.” (Id. at p. 345; see Top Serv. Body Shop, Inc. v. Allstate Ins. Co. (1978)
The prima facie tort doctrine exhibits a specific deficiency with regard to the tort of intentional interference with prospective economic advantage. “Since not all interference [is] actionable, or even morally wrong, it cannot be said that there [is] some principle against interference. Since there is no hint in such abstract statements of liability as to what might constitute a defense it is difficult to believe that there is actually any principle involved at all. It has rather the faded ambience of a ‘universal truth’ once thought to be discoverable in law. In any event, this [leaves] the defendant in an interference case knowing he [is] entitled to some defense, but not knowing what defenses would be accounted sufficient.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 345.)
B
A second reason for the common law’s near incoherence on the tort of intentional interference with prospective economic advantage may be discovered within the law itself.
To borrow words from Brennan v. United Hatters of North America, Local No. 17 (1906) 73 N.J.L. (44 Vroom) 729, 742 [
The tort’s “protectionist” premise, however, is at war with itself. For the person who deserves protection in the acquisition of property is not only the interfered-with party but also the interfering party. Why then should the interfered-with party receive favor, while the interfering party is disfavored, by virtue of their respective statuses? Why should the interfered-with party’s acquisitive efforts be elevated to a kind of property interest, good against the world, while those of the interfering party are deemed illegitimate? It is “often assumed . . . that interference . . . should produce liability because it is wrong to interfere. This is, however, very much the same as saying it is wrong because it is wrong.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 343 [speaking expressly of interference with contract].) In the words Lord Bramwell spoke in the House of Lords in Mogul Steamship Co. v. McGregor, Gow & Co., supra, A.C. 25, 47, affirming Mogul Steamship Co. v. McGregor, Gow & Co., supra, 23 Q.B.D. 598, “[ijt does seem strange”—and more than strange—“that to enforce freedom of trade, of action, the law should punish” the interfering party “who make[s] . . . perfectly honest” arrangements “with a belief’ that they are “fairly required for [his] protection,” whereas it rewards the interfered-with party who does likewise. (Italics in original.) Reason supports the conclusion that, even when there is a breach of contract, the interfered-with party should not be preferred over the interfering party: the breach may be “efficient.” (See, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at pp. 1119-1120; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 78-91; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 360-361.) Reason practically compels the same conclusion when there is no breach because there is no contract. (See Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 90-91.)
Further, liability under the tort may threaten values of greater breadth and higher dignity than those of the tort itself.
One is the common law’s policy of freedom of competition. “ ‘The policy of the common law has always been in favor of free competition, which
Another of these values expresses itself in the guaranty of freedom of speech in the First Amendment to the United States Constitution.
A related value is found in the First Amendment’s guaranty of freedom of association. “[0]ne of the foundations of our society is the right of individuals to combine with other persons in pursuit of a common goal by lawful means.” (NAACP v. Claiborne Hardware Co. (1982)
Still another value inheres in the First Amendment’s guaranty of the people’s right to petition the government for redress of grievances. This protection is one of our “great, . . . indispensable democratic freedoms,” and occupies a “preferred place ... in our scheme.” (Thomas v. Collins (1945)
C
A third reason for the common law’s near incoherence on the tort of intentional interference with prospective economic advantage may be discovered in its focus on the interfering party’s motive, that is, why he seeks whatever it is that he seeks through his interference, and on his moral character as revealed thereby.
That there is a focus on the interfering party’s motive cannot be doubted. (See, e.g., Hofmann Co. v. E.I. Du Pont de Nemours & Co. (1988)
In spite of the many words devoted to the topic, the focus on the interfering party’s motive is simply inappropriate. That is because, for present purposes, motive is altogether immaterial.
In Boyson v. Thorn (1893)
In Boyson, we followed Lord Chief Justice Coleridge. In Bowen v. Hall (1881) 6 Q.B.D. 333, 344 (hereafter sometimes Bowen), which was decided by the Court of Appeal, he rejected the proposition, dissentiente, that “the same person for doing the same thing under the same circumstances with the same result is actionable or not actionable according to whether his inward motive was selfish or unselfish for what he did.”
In Boyson, we also anticipated Lord Watson. In Allen v. Flood (1898) A.C. 1, 92, which was handed down by the House of Lords, he declared that “the law . . . does not. . . take into account motive as constituting an element of civil wrong.[
To understate the point, “ambiguities [are] inherent in the motive inquiry . . . .” (Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1132; accord, Leigh Furniture and Carpet Co. v. Isom, supra,
As we declared in Boyson, quoting Lord Chief Justice Coleridge in Bowen, an inquiry of this sort is “ ‘dangerous and inexpedient ... for courts of justice; judges are not very fit for [it], and juries are very unfit.’ ” (Boyson v. Thorn, supra,
It may be hard for a trier of fact to discern the interfering party’s motive because of factors peculiar to the latter. (See, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 11 Minn. L.Rev. at p. 1142.) That is true when the interfering party is an individual: a person’s mind and heart typically reveal themselves and conceal themselves at one and the same time. It is truer still when the interfering party is a group of individuals: many minds and hearts are then involved, and they cannot simply be added up. And, of course, it is truest when the interfering party is a corporation or similar entity: the “mind” and “heart” of such a one is purely Active.
It may also be hard for a trier of fact to discern the interfering party’s motive because of factors peculiar to itself. (See Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 348.) Certainly, motive may be spoken of as a fact. But it implicates a rich variety of values. As a result, it allows and perhaps even invites the trier of fact to pass a kind of moral judgment on the interfering party as such—a judgment
The untoward results of the focus on the interfering party’s motive may present themselves in individual cases in the form of arbitrary and capricious outcomes. (See Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 356.) In matters in which the trier of fact believes it has discerned good motive or at least persuades itself it has, an interfering party who has both engaged in objectively bad conduct and produced objectively bad consequences may evade liability for injury. By contrast, in matters in which it adopts a contrary view, an interfering party who has neither engaged in such conduct nor produced such consequencés may be made to pay for what is simply damnum absque injuria. In a word, much may depend on mere appearances and perceptions and on nothing more.
Such untoward results, however, will not confine themselves to individual cases but will spread generally to deter what should be encouraged (see, e.g., Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 11 Minn. L.Rev. at pp. 1142-1143) and also to encourage what should be deterred. The example of the interfering party who has both engaged in objectively bad conduct and produced objectively bad consequences, but has nevertheless evaded liability, may lure others to follow in his steps, and thereby cause detriment to society as a whole. Conversely, the example of the interfering party who has neither engaged in such conduct nor produced such consequences, but has still been made to pay, may serve to turn aside others, and thereby deny the community the benefit of good acts and good effects or at least the freedom to do as one chooses when he does no injury. Moreover, the example of both may lead to further social costs, as “properly motivated actors” take “precautions ... to avoid liability” that they should not be exposed to (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at p. 97), and actors otherwise motivated fabricate schemes to escape responsibility that they deserve.
With all this said, we are put to the question: what are we to do about the tort of intentional interference with prospective economic advantage?
It would be unreasonable to choose to do nothing. As stated, in this regard the common law is approaching incoherence. It is not about to turn to consistency of its own accord.
It would also be unreasonable to choose abolition. Such a course commands little support among courts or commentators. That is unsurprising. Most agree that the interfering party should not be granted general immunity, but should be exposed to liability under at least some circumstances. (See, e.g., Leigh Furniture and Carpet Co. v. Isom, supra, 657 P.2d at pp. 302-304; Top Serv. Body Shop, Inc. v. Allstate Ins. Co., supra, 283 Ore. at pp. 204-210 [582 P.2d at pp. 1368-1371]; Rest.2d Torts, § 766B, pp. 20-23; Prosser & Keeton, The Law of Torts, supra, Interference With Prospective Advantage, § 130, pp. 1005-1031; Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1149; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 97-99; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 363-376; but see Note, Tortious Interference With Contract: A Reassertion of Society’s Interest in Commercial Stability and Contractual Integrity, supra, 81 Colum. L.Rev. at p. 1515; Sayre, Inducing Breach of Contract, supra, 36 Harv. L.Rev. at pp. 670, fn. 22, 673, & 700.) For just as “[i]t cannot be ... a theorem of justice that liability is always just” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 337), neither can it be a principle of law that immunity is invariably proper.
In view of the foregoing, the only reasonable choice is reformulation. Indeed, an undertaking of this sort is compelled by the almost unanimous agreement, referred to above, that the interfering party should not be allowed to interfere with impunity at all times and under all circumstances.
To this end, we should clearly define the tort, basing it on stable and circumscribed ground, and eschewing the prima facie tort doctrine, the “protectionist” premise, and the interfering party’s motive. Our focus should be on objective conduct and consequences. Further, our concern should be with such conduct and consequences as are unlawful.
General considerations of a formal nature counsel us to take this path. As noted, the tort’s rules are “admittedly vague” and their applications “difficult
Specific concerns of a substantive kind operate as well. It is plain from the above discussion that the tort is based on the problematic prima facie tort doctrine. In addition, it implicates the “protectionist” premise, which carries internal inconsistency and also threatens the common law’s policy of freedom of competition and the First Amendment’s guaranty of freedom of speech, freedom of association, and right of petition. Lastly, it has a tendency to yield untoward results, both in individual cases and generally, through its focus on the interfering party’s motive. An objective definition based on unlawfulness, developed in light of such facts, would cure or mitigate the deficiency of the doctrine, lessen or eliminate the flaw attributable to the premise, and decrease or neutralize the danger to the policy and the guaranty.
Thus reformulated, the tort requires objective, and unlawful, conduct or consequences.
It follows that the tort may be satisfied by intentional interference with prospective economic advantage by independently tortious means. (Accord, e.g., Top Serv. Body Shop, Inc. v. Allstate Ins. Co., supra, 283 Or. at pp. 209-210 [
The interfering party is properly liable to the interfered-with party in such a situation. That is most plainly true when the independently tortious means the interfering party uses are tortious as to the interfered-with party himself. By the tort’s very nature, the interfered-with party is an intended (or at least known) victim of the interfering party. (See Ramona Manor Convalescent Hospital v. Care Enterprises (1986)
It also follows that the tort may be satisfied by intentional interference with prospective economic advantage through restraint of trade, including monopolization. (Accord, Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1149; Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at pp. 97-99; Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at pp. 367-368; see Top Serv. Body Shop, Inc. v. Allstate Ins. Co., supra, 283 Or. at pp. 209-210 [
The interfering party is properly liable to the interfered-with party when he restrains trade. By the tort’s very nature, as stated above, the interfered-with party is the intended (or at least known) victim of the interfering party. When the interfering party restrains trade, he causes injury to the interfered-with party at least through adverse effect on consumer welfare.
So reformulated, the tort can be distinctly stated and consistently applied.
The independently tortious means that commonly appear in this context, including assault and battery, defamation, and fraud and deceit (Top Serv. Body Shop Inc. v. Allstate Ins. Co., supra,
Also, restraints of trade may be “measured by objective economic criteria.” (Myers, The Differing Treatment of Efficiency and Competition in Antitrust and Tortious Interference Law, supra, 77 Minn. L.Rev. at p. 1104.) Decisions under federal antitrust statutes since Continental T.V., Inc. v. GTE Sylvania Inc. (1977)
Moreover, the tort’s internally inconsistent “protectionist” premise is now removed. The interfered-with party is not favored over the interfering party by virtue of their respective status: the former is merely protected against the latter’s use of independently tortious means and restraints of trade.
Furthermore, the tort itself does not now impair the common law’s policy of freedom of competition. By its very terms, the freedom in question does not extend to the use of independently tortious means or restraints of trade.
Neither does the tort now undermine the First Amendment’s guaranty of freedom of speech, freedom of association, or right of petition. That is because, to the extent that speech or association or petitioning is involved, the federal constitutional provision itself limits liability. (See, e.g., NAACP v. Claiborne Hardware Co., supra, 458 U.S. at pp. 907-920 [73 L.Ed.2d at pp. 1232-1241] [dealing with speech and association]; Blatty v. New York Times Co., supra, 42 Cal.3d at pp. 1045-1048 [dealing with speech]; Matossian v. Fahmie, supra, 101 Cal.App.3d at pp. 135-137 [dealing with petitioning].)
Finally, in any action based on the tort, it is the interfered-with party as plaintiff who should bear the burden of pleading and the burden of proof as
Ill
Let us turn now to the case at bar.
In pertinent part, the superior court instructed the jury that the elements of the tort of intentional interference with prospective economic advantage were these: (1) an “economic relationship existed between” Della Penna “and various Lexus dealers, containing a probable future economic benefit or
On appeal, Della Penna contended, inter alia, that the instructions were prejudicially erroneous because they required “wrongfulness.” The Court of Appeal agreed, and reversed.
Under the tort as reformulated, it is plain that the Court of Appeal erred. To be sure, the instructions appear erroneous. They did not expressly require objective, and unlawful, conduct or consequences. Neither, it seems, did they do so impliedly. Any error, however, was not prejudicial. The reason is manifest. To the extent that they were satisfied by mere “wrongfulness”— which, at Della Penna’s request, was defined under a kind of “ ‘business ethics’ standard” as behavior “outside the realm of legitimate business transactions” because of “method” or “motive”—they were satisfied by far too little. For to that extent they did not demand the use of independently tortious means or restraints of trade. It is true that their focus on motive— “[wjrongfulness may lie . . . by virtue of an improper motive”—might threaten an arbitrary and capricious outcome in a given case. The same is true of their use of the term “wrongful” and its cognates, which are inherently ambiguous (see Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at p. 503). But, in spite of the foregoing, there is simply no basis to conclude that the outcome here was either arbitrary or capricious.
IV
It is evident in the analysis presented above that, on many points, I agree with the majority’s discussion of the tort of intentional interference with prospective economic advantage and Della Penna’s claim against Toyota asserting such a cause of action.
On two major points, however, I am compelled to state my disagreement.
Second, if I were to adopt such a “standard,” I would not allow it to remain undefined. Otherwise, our effort in Buckaloo to rationalize the governing principles would be undermined. Formerly, the interfering party as defendant was left “knowing he was entitled to some defense, but not knowing what defenses would be accounted sufficient.” (Dobbs, Tortious Interference With Contractual Relationships, supra, 34 Ark. L.Rev. at p. 345.) Now, it appears, the interfered-with party as plaintiff will find himself in a similar position, knowing he may assert a claim, but not knowing the substance of a crucial element. This is hardly an improvement. Any definition of the “standard,” of course, should avoid suggesting that the interfering party’s motive might be material for present purposes. As I have explained, the focus on this issue is inappropriate. (See, ante, at pp. 402-406.) A position of this sort, one must acknowledge, would result in the imposition of no liability on a person who is purely, but merely, “malicious”—who acts, to quote Justice Holmes, with “disinterested malevolence” (Amer. Bank & Trust Co. v. Federal Bank (1921)
V
Because I conclude, for the reasons stated above, that we should reverse the judgment of the Court of Appeal insofar as it reverses the judgment of
The proximate historical source of the tort of intentional inference with prospective economic advantage is the decision of the Court of Appeal in Temperton v. Russell (1893) 1 Q.B. 715, which is one of the progeny of Lumley v. Gye (Q.B. 1853) 2 El. & Bl. 216 [118 Eng.Rep. 749, the proximate historical source of the related tort of intentional interference with contract (see fn. 6, post).
The tort’s ultimate origin, however, goes back further than Temperton, supra, 1 Q.B. 715. It “seems to. have developed at a very early date”—specifically, between the 14th and 16th centuries—“in cases having to do with the use of physical violence, or threats of it, to drive away customers from the plaintiff’s market, or those who might make donations to his church; but it seems to have been limited rather definitely to the use of such improper means. During the seventeenth and eighteenth centuries there were decisions involving threats and violence to frighten away prospective workmen or customers, and later there were others which gave
The First Amendment, of course, is made applicable to the states through the due process clause of the Fourteenth Amendment. (New York Times Co. v. Sullivan (1964)
Compare McKay v. Retail Auto. S.L. Union No. 1067 (1940)
Indeed, Temperton v. Russell, supra, 1 Q.B. 715, which, as noted, is the proximate historical source of the tort of intentional inference with prospective economic advantage (see fn. 1, ante), arose out of a struggle of labor unionists and was decided adverse to their interests. (See Moore v. Cooks etc. Union No. 402 (1919)
In Pacific Gas & Electric Co. v. Bear Stearns & Co., supra,
The proximate historical source of the tort of intentional interference with contract is Lumley v. Gye, supra, 2 El. & Bl. 216. (See fn. 1, ante.)
The tort’s ultimate origin, however, is much older. “One form . . . can be traced back to very ancient times”—under early Roman law—“when it was not the existence of a contract which was important, but the status, or relation recognized by the law, in which the parties stood toward one another, and with which the defendant interfered. ... By the thirteenth century this Roman law idea had been taken over by the common law, but had been somewhat altered in the transition, so that it became an action for damage sustained by any master through actual loss of the services of a servant because of violence inflicted upon him. In 1349 an additional remedy was created by statute. The Black Death had left England with a great shortage of labor, and to meet the resulting agricultural crisis the famous Ordinance of Labourers was enacted, by which a system of compulsory labor was introduced. A penalty was provided to keep the laborer from running away, and a remedy was given to the employer against anyone who received and retained him in his service. The statutory action for enticing or harboring the servant which thus developed, as well as the older one for violence against him, was enforced in trespass. In time the two became intermingled and confused, so that they were no longer distinguished, and at last both were absorbed into the action on the case.” (Prosser & Keeton, The Law of Torts, supra, Interference With Contractual Relations, § 129, pp. 979-980, fns. omitted, citing cases and other authorities; see Note, Tortious Interference With Contractual Relations in the Nineteenth Century: The Transformation of Property, Contract, and Tort, supra, 93 Harv. L.Rev. at pp. 1511-1521; Rest.2d Torts, § 766B, com. b, pp. 21-22; Sayre, Inducing Breach of Contract, supra, 36 Harv. L.Rev. at pp. 663-666.)
See Note, The Prima Facie Tort Doctrine, supra, 52 Colum. L.Rev. at pages 507 to 508, footnote 33 (stating that “[i]n England it is doubtful whether motive has any bearing upon the legality of a harmful act, except where there is more than one participant”); Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at page 95, footnote 145 (to similar effect).
In Imperial Ice Co. v. Rossier (1941)
A question that raises itself at this juncture is whether the related tort of intentional interference with contract (see fn. 1, ante) should be reformulated to require objective, and unlawful, conduct or consequences. It need not be addressed here. That tort is simply not implicated in this action. I note in passing that either an affirmative or a negative answer might be given to the question of reformulation. An affirmative answer might be supported by reasoning such as that presented in the text. In contrast, a negative answer might be sustained on a view that the tort in question “protects society’s interest in preserving the formal integrity of contract and rests on an implicit appreciation of the fundamental, structure-giving significance of contracts in a market economy.” (Note, Tortious Interference With Contract: A Reassertion of Society’s Interest in Commercial Stability and Contractual Integrity, supra, 81 Colum. L.Rev. at p. 1523; accord, Imperial Ice Co. v. Rossier, supra,
When the interfering party intentionally interferes by independently tortious means, the interfered-with party, of course, is entitled to compensatory damages pursuant to section 3281 et seq. of the Civil Code if he suffers harm. In view of the fact that what is protected is his prospective economic advantage (see Blank v. Kirwan (1985)
When the interfering party intentionally interferes through restraint of trade, the interfered-with party’s entitlement to compensatory and exemplary damages is generally as stated above. (See fn. 10, ante.) But by analogy to section 4 of the Clayton Act, as construed in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. (1977)
Whether the tort may be satisfied by intentional interference other than by independently tortious means or through restraint of trade is a question that should remain open. I note in
Another question that should remain open is the precise intent that the tort requires. The “definition of ‘intent’ continues to be disputed.” (Perlman, Interference With Contract and Other Economic Expectancies: A Clash of Contract and Tort Doctrine, supra, 49 U. Chi. L.Rev. at p. 65; compare, e.g., Rest.2d Torts, § 766B, com. d, p. 22 [intent to act with actual or constructive knowledge of resulting interference] with Buckaloo v. Johnson, supra,
It has been argued that to impose on the interfered-with party the burden of proving the interfering party’s intentional interference with prospective economic advantage by independently tortious means “would effectively abolish the interference tort[],” at least pro tanto, because anyone “who could meet this burden could proceed under the independent action and would have no need for the interference tort.” (Dowling, A Contract Theory for a Complex Tort: Limiting Interference With Contract Beyond the Unlawful Means Test, supra, 40 U. Miami L.Rev. at p. 511, fn. 186.) That is not the case. An interfered-with party may be unable to proceed under such an “independent action” when the means in question are independently tortious only as to a third party.
Of course, to hold that the interfering party’s motive is not material for present purposes does not mean that such motive cannot amount to relevant evidence, that is, “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)