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Selma Pressure Treating Co. v. Osmose Wood Preserving Co.6/25/1990
demnity, the reviewing court stated: " here can be no indemnity without liability. In other words, unless the prospective indemnitor and indemnitee are jointly and severally liable to the plaintiff there is no basis for indemnity." (141 Cal. App. 3d at p. 425.) The question was then whether Davis, who presumably caused the physical injury of the victim, was jointly and severally liable for the victim's loss of action because of the malpractice of the attorney.
In sustaining the demurrer to Petery's second cause of action for equitable indemnity against Osmose the court found: "The cross-complaint
presently before the Court seeks indemnity from the cross-defendants. There is no basis for indemnity unless the cross-complainant and the cross-defendant are jointly and severally liable to the plaintiff. (Munoz vs. Davis (1983) 141 Cal. App. 3d 420, 425.) The Court knows of no authority under which the cross-defendant can be held liable to the plaintiff for abatement of the alleged nuisance. The Shurpin [v. Elmhirst (1983) 148 Cal. App. 3d 94 (195 Cal. Rptr. 737)] decision, which deals with liability for damages, does not furnish such a basis. Under the facts alleged here it is difficult to see how the Court could fashion any order directing the cross-defendant to abate the nuisance allegedly existing on property owned and controlled by parties other than the cross-complainants and cross-defendant. Thus, the Court concludes that the cross-defendant is not liable to the plaintiff for abatement of the nuisance. Because the plaintiff cannot seek damages the holding of Shurpin does not support the cross-complainants' claim."
It would appear the trial court below sustained the demurrer based upon the following reasoning. By statute, when the state in its representative capacity prosecutes a cause of action for a public nuisance, it is confined to seeking an abatement of the public nuisance; money damages are not available to the state. (Code Civ. Proc., ยง 731; County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal. App. 3d 848, 859-861 [223 Cal. Rptr. 846].) Under Munoz the prospective indemnitee and indemnitor must be jointly and severally liable to the plaintiff. Therefore, the trial court's reasoning concluded that in order for the licensing companies and the chemical suppliers to be jointly and severally liable, the State must be able to pursue a
nuisance cause of action against them. Since the only remedy the State can seek for the maintenance of a public nuisance is abatement, cross-defendants cannot be liable in indemnity unless they could be made to abate the nuisance. As they have no control over the polluted land, they cannot be made to abate the nuisance. Ergo, they are not liable in equitable indemnity under the State's claim for public nuisance.
Petery and Schuessler launch a multifaceted assault upon the court's conclusion. On review our task is to determine whether under any theory the complaining party might be able to show entitlement to relief. If we find one such theory we must reverse the judgment and remand so that the complainants might proceed. Because our review encompasses solely questions of law, we can entertain legal arguments not presented below. (See Ward v. Taggart (1959) 51 Cal. 2d 736, 742 [336 P.2d 534]; Fenton v. Board of Directors (1984) 156 Cal. App. 3d 1107, 1113 [203 Cal. Rptr. 388]; Terry v. Bender (1956) 143 Cal. App. 2d 198, 201 [300 P.2
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 California Personal Injury Attorneys
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