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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
to prove the various allegations; we are concerned only with whether such allegations show entitlement to relief or the prospect for such entitlement, if properly amended.
Indemnity generally arises where one party must make good a loss or damage incurred by another. Parties can contract for indemnification, or the duty to indemnify can be implied from a contract. Additionally, the right to indemnification also can be found as the result of equitable considerations. Equitable indemnity as now fashioned in California allows one tortfeasor to seek either full or partial indemnity from a joint tortfeasor on a comparative fault basis. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal. 3d 578, 608 [146 Cal. Rptr. 182, 578 P.2d 899]; Munoz v. Davis (1983) 141 Cal. App. 3d 420, 423-424 [190 Cal. Rptr. 400].)
As the court in Jaffe v. Huxley Architecture (1988) 200 Cal. App. 3d 1188, 1191-1192 [246 Cal. Rptr. 432], noted: "Quite simply, equitable indemnification is a matter of fairness. '" n the great majority of cases . . . equity and fairness call for an apportionment of loss between the wrongdoers in proportion to their relative culpability, rather than the imposition of
the entire loss upon one or the other tortfeasor."' (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488, 495. . . .) There seems no logical reason why the application of this doctrine should turn on the relationship of the tortfeasors to each other. What is important is the relationship of the tortfeasors to the plaintiff and the interrelated nature of the harm done. [Citation.] It would be unfair to require one tortfeasor to bear a loss disproportionate to his relative culpability simply because a tortfeasor who contributed to the loss owed a duty to the plaintiff but not to the defendant."
Thus, in deciding the propriety of allowing an indemnification claim, we look for joint liability to the plaintiff or injured party by both the would-be indemnitee and indemnitor. This court explained in Cicone v. URS Corp. (1986) 183 Cal. App. 3d 194, 212 [227 Cal. Rptr. 887]: "The concept of joint tortfeasors for the purpose of indemnity is explained in the [Restatement Second of Torts] as '. . . two or more persons who are liable to the same person for the same harm. It is not necessary that they act in concert or in pursuance of a common design, nor is it necessary that they be joined as defendants. The rule stated applies to all torts, including not only negligence but also misrepresentation, defamation, injurious falsehood, nuisance or any other basis of tort liability.' (Rest.2d Torts, ยง 886A, com. b, italics added.)" (See Alisal Sanitary Dist. v. Kennedy (1960) 180 Cal. App. 2d 69, 79 [4 Cal. Rptr. 379] [sanitary district, liable to property owner in both nuisance and inverse condemnation, allowed to state claim for indemnity against sewer engineers].)
In Munoz v. Davis, supra, 141 Cal. App. 3d 420, the victim was injured in an automobile accident, Davis allegedly being the culpable party. The victim engaged an attorney, Munoz, to prosecute a claim against Davis. Munoz failed to file the claim against Davis within the statute of limitations. The victim filed a malpractice action against Munoz; Munoz cross-complained against Davis for equitable indemnity. Davis's demurrer was sustained by the trial court and that ruling was upheld on appeal.
After discussing the history of equitable in
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