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Major Clients Agency v. Diemer11/16/1998
is fatally defective if there is an absence of an allegation that Major Clients has discharged a liability that it should be the responsibility of Diemer to pay. (See Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 108-109.)
The basis of an action for equitable indemnity is a joint legal obligation to another for damages. (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital, supra, 8 Cal.4th at p. 114.) As we previously stated "there can be no indemnity without liability" (Munoz v. Davis, supra, 141 Cal.App.3d at p. 425), meaning that if the record does not establish that a defendant is a concurrent tortfeasor responsible in some measure for the injuries suffered by the plaintiff, that defendant is not subject to a claim for indemnity by another defendant. (Frank v. State of California (1988) 205 Cal.App.3d 488, 494.) In this case, Major Clients' claim for equitable indemnity is lacking the essential element of concurrent liability to plaintiff Franklin.
Moreover, indemnification is not automatically available to a tortfeasor who, with another, injures the same plaintiff. Courts are obligated to make an evaluation of the case to determine if the application of the remedy is appropriate. (Woodward-Gizienski & Associates v. Geotechnical Exploration, Inc. (1989) 208 Cal.App.3d 64, 67). In this case, we hold that indemnity would be inappropriate. Major Clients was an entity ostensibly expert in the type of negotiations in which it engaged and the negotiations were carried out by a Major Clients representative who was an attorney. We hold that the rationale expressed in the successor attorney malpractice cases have application here and, under any circumstance would render the application of indemnity inappropriate.
"An attorney generally will not be held liable to a third person not in privity of contract with him since he owes no duty to anyone other than his client. The question of whether an attorney may, under certain circumstances, owe a duty to some third party is essentially one of law and, as such, involves `a judicial weighing of the policy considerations for and against the imposition of liability under the circumstances. [Citation.]' (Goodman v. Kennedy [,supra,] 18 Cal.3d [at p.] 342 . . . .)" (Schick v. Lerner, supra, 193 Cal.App.3d at p. 1329.)
To state a cause of action for equitable indemnity, Major Clients' complaint must allege that: (1) Major Clients and Diemer's concurrent fault contributed as a cause of economic damages to the injured party, Franklin; (2) Major Clients has become liable to pay economic damages to the injured party, Franklin; (3) Major Clients is entitled to an award against Diemer for an amount of such damages in excess of Major Clients' proportionate fault. (BAJI No. 12.69.) The second and third requirements are lacking in that there is no allegation by Major Clients that it has suffered any loss by virtue of any legal obligation to pay Franklin. The record reflects that Franklin and Lorimar entered into a settlement agreement. The terms of the settlement agreement are, however, not to be found in this record. Major Clients does not direct us to any settlement agreement, judgment, or order obligating Major Clients to pay any sum to Franklin. Absent this prerequisite, Major Clients cannot state a viable cause of action against Diemer for equitable indemnity.
Where there is no legal duty, the issue of professional negligence cannot be pled because with the absence of a breach of duty, an essential element of the cause of action for professional negligence is missing. (Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267.)
In summation, applying to this case the pri
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