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would be limited to traditional contractual type remedies. See
United States v. Burke, supra at 234 ("A 'tort' has been defined
broadly as a 'civil wrong, other than breach of contract, for
which the court will provide a remedy in the form of an action
for damages.'" (quoting Keeton et al., Prosser and Keeton on the
Law of Torts 2 (5th ed. 1984)); Mundy v. Household Fin. Corp.,
885 F.2d 542, 544 (9th Cir. 1989) (a breach of the implied
covenant of good faith and fair dealing under California law is
not a tort). To the extent that Harris’ payment of the
$2,315,000 was intended to satisfy either the first or fifth
cause of action, it will not qualify for exclusion under section
104(a)(2).
As to the other three of the first five causes of action
(namely, interference with contract, interference with
prospective advantage, and fraud), those claims did involve a
tort. None of them alleges breach of contract, and each of them,
in and of itself, would, under California law, allow for the
recovery of damages for emotional distress. Given that a
recovery for emotional distress is not a traditional contractual
type remedy, we conclude that the second through fourth causes of
action satisfy the first condition for exclusion under section
104(a)(2).
We turn to analyze whether petitioner received any of the
$2,315,000 as compensation for those three torts so as to satisfy
the second condition for exclusion under section 104(a)(2) asking
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