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Court of Appeal, First District, Division 2, California.

CITY OF SAUSALITO, Cross-Complainant and Appellant, v. Thomas Michael RYAN and Marjorie Kelley, Cross-Defendants and Respondents.

Civ. 23731.

Decided: January 19, 1968

J. Francis Shirley, Shirley and Peterson, and George Douglas Vaughn, San Francisco, for appellant. Eliassen & Posted, David G. Leach, San Francisco, for respondent, Marjorie Kelley. Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, for respondent, Thomas Michael Ryan, Robert A. Seligson, San Francisco, of counsel.

The City of Sausalito (hereafter City) appeals from two judgments sustaining, without leave to amend, the demurrers of cross-defendants, Thomas Michael Ryan (hereafter Ryan) and Marjorie Kelley (hereafter Kelley), to the City's first amended cross-complaint in declaratory relief, seeking noncontractual equitable indemnity if the City is held liable in the main action for damages for the wrongful death of Edwin Gray.

Plaintiffs, the heirs of Edwin Gray (hereafter Gray), who are not parties to this appeal, filed their complaint against Ryan, Kelley and the City, alleging that on February 2, 1964, Gray was a passenger in a southbound Triumph TR 3 driven by Ryan that collided with a northbound Falcon driven by Kelley on Bridgeway Boulevard about 500 feet south of Ondine's Restaurant in the City; that the impact of the collision careened the Triumph eastward across the sidewalk and into the waters of San Francisco Bay, where Gray drowned. The complaint further alleged that Kelley negligently drove her Falcon; that Ryan, while intoxicated, wantonly, recklessly and carelessly drove at an excessive speed and that the City negligently and contrary to section 835 of the Government Code maintained Bridgeway Boulevard as a dangerous road without a barrier, handrail or guardrail on its eastern boundary between the edge of its sidewalk and the waters of San Francisco Bay.

Thereafter, the court sustained, without leave to amend, the City's demurrer to the complaint of the minor daughter of Gray who had failed to file a timely claim prior to the filing of her action and the City filed its first amended cross-complaint, seeking a declaration that if the widow of Gray recovers a judgment against the City in her wrongful death action, the City will be entitled to implied indemnity from Ryan and Kelley. The City alleged that Ryan and Kelley were guilty of active negligence and primarily liable while its negligence, if any, was passive and its liability merely secondary. This appeal ensued after the court below sustained Ryan and Kelley's demurrers to the amended cross-complaint, without leave to amend, and denied the City's motion to reconsider.

The City contends that it is entitled to implied equitable indemnity on the basis of the allegations in its first amended cross-complaint that its negligence under the facts war merely a passive failure to fulfill its statutory duties of care while that of Ryan and Kelley constituted active participation in the accident that caused the death of Gray. Ryan and Kelley argue that no such equitable right to indemnity can arise here as there is no special relationship between them and the City other than the fact that all are codefendants in the wrongful death action. They contend that the City is simply a joint tortfeasor whose independent negligence and dereliction of its statutory duties proximately contributed to the death of Gray.

The doctrine of implied noncontractual indemnity, when applicable, permits one of two tortfeasors to shift the entire loss to the other when, without active fault on the former's part, he has been compelled by reason of some legal obligation to pay damages occasioned by the immediate negligence of the latter (Aerojet General Corp. v. D. Zelinsky & Sons, 249 A.C.A. 688 at p. 691, 57 Cal.Rptr. 701). It is based on equitable considerations impelled by a contrast between the secondary, passive role of one tortfeasor and the primary, active roll of the other (Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367 at pp. 381–383, 25 Cal.Rptr. 301), but may also rest upon a contractual relationship between the indemnitor and the indemnitee predicated upon the former's breach of an implied contract to perform the work carefully and to discharge foreseeable damages resulting from a breach. Whichever is the theoretical premise, equitable or implied contractual, the indemnitee-claimant's active participation in the wrong will usually preclude his recovery (Goldman v. Ecco-Phoenix Elec. Corp., 62 Cal.2d 40 at p. 44, 41 Cal.Rptr. 73, 396 P.2d 377).

Whether the City's role in the death of Gray precludes indemnity is a question of fact for the jury of fact finder (Ralke Co. v. Esquire Bldg. Maintenance Co., 246 Cal.App.2d 141, 54 Cal.Rptr. 556). At this stage of the proceeding, we are concerned only with the allegations of the complaint and cross-complaint. These clearly indicate that while Ryan and Kelley are charged with active negligence, the action against the City is based on its duties to safely maintain public property pursuant to section 835 of the Government Code. It ligence the plaintiff may recover. Consequently, the efficacy of the City's claim for indemnification can best be determined at the trial (cf. Baldwin Contracting Co. v. Winston Steel Works, Inc., 236 Cal.App.2d 565, 571–572, 46 Cal.Rptr. 421; Straub v. Village of Livonia (1964) 22 A.D.2d 749, 253 N.Y.S.2d 717).

Ryan and Kelley's chief contention is that in the absence of a special relationship between them and the City, there is no basis for the application of the independent doctrine of equitable indemnity. Although this was the law at the time the first implied indemnity case was decided in California (City & County of S. F. v. Ho Sing, 51 Cal.2d 127, 330 P.2d 802), it is clear that the right can now be invoked even in the absence of any special relation ship between the tortfeasors (Cobb v. Southern Pac. Co., 251 A.C.A. 1073, 1076–1077, 59 Cal.Rptr. 916; Lewis Avenue Parent Teachers' Ass'n v. Hussey, 250 A.C.A. 297, 300, 58 Cal.Rptr. 499; Herrero v. Atkinson, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490).

As this court (Division Three) stated in Herrero v. Atkinson, supra, at page 74, at page 493 of 38 Cal.Rptr., ‘The duty to indemnify may arise, and indemnity may be allowed in those fact situations where in equity and good conscience the burden of the judgment should be shifted from the shoulders of the person seeking indemnity to the one from whom indemnity is sought. The right depends upon the principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him.’ Thus, the determination of whether or not indemnity should be allowed must, of necessity, depend on the facts of each case (Leflar, Contribution and Indemnity Between Tortfeasors, 81 University of Pennsylvania L.Rev. 130, 153–156; Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa L.Rev. 517).

The theoretical basis of the doctrine was most illuminatingly discussed recently by the Ninth Circuit Court of Appeals in United Air Lines, Inc. v. Wiener, 335 F.2d 379. A United DC–7 airliner collided with a military jet on a training maneuver in the same airway, killing all of the occupants of both planes. Their heirs filed wrongful death actions against United and the federal government. The trial court found the government negligent in failing to secure clearance for the jet's procedure in the airway, to yield the right of way, to avoid the altitudes regularly used by commercial airlines, and a number of other respects. United Air Lines was also found negligent in failing to see and avoid the jet, to have knowledge of the jet procedures, etc. The government (like respondents here) argued that there was no special relationship between it and the airline, that United and the government were simply joint tortfeasors, concurrently negligent and in pari delicto. In granting United's claim for indemnity, the court, at pages 398 and 399, discussed the theoretical basis and history of implied indemnity as follows:

‘The doctrinal basis for noncontractual indemnity among tort-feasors is unjust enrichment. The right is ‘restitutional in nature, and is based on inherent injustice.’ There is general agreement that indemnity is permitted where the indemnitee has only an imputed or vicarious liability because of a special relationship with the actual wrongdoer but is not personally at fault; where the indemnitee has incurred liability by performing at the direction of the indemnitor an act not manifestly wrong; where the indemnitor has the duty to maintain safe premises, defects in which the indemnitee has failed to correct or discover; or where the indemnitor is a supplier of goods. There are, however, numerous cases permitting indemnity under circumstances which do not fit neatly into the above categories.

‘These cases frequently characterize the negligence of the indemnitor as ‘active,’ ‘primary,’ or ‘positive’ and the negligence of the indemnitee as ‘passive,’ ‘secondary,’ or ‘negative.’ Such characterizations have been criticized as being artificial, lacking objective criteria desirable for predictability in the law, and various rationales have been proposed for allowance of indemnity in such cases. Thus, indemnification of a concurrently negligent tortfeasor is said to be based upon a disparity of duties of care owed by the tortfeasors to the injured party, the doctrine of last clear chance or discovered peril, a disparity of gravity of the fault of the tortfeasors, or a combination of these. * * *

“‘Our law, however, does not in every case disallow an action by one wrongdoer against another to recover damages incurred in consequence of their joint offense. The rule is, ‘In pare delicto, potior est conditio defendentis.’ If the parties are not equally criminal, the principal delinquent may be held responsible to his codelinquent for damages incurred by their joint offense. In respect to offenses in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offense is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrongdoers.' * * *”

We note that the court particularly emphasized the disparity of duties as between the government and United, stating at page 402 that United's duty was to exercise the highest degree of care, that of the government to exercise ordinary care. The court concluded that there was such a difference in the contrasted character of the established fault of United and the government as to warrant indemnity in favor of United.

Likewise, here, the alleged liabilities to the plaintiff of Ryan and Kelley on one hand and the City, with its statutory obligations on the other, are based on breaches of different qualities of duties toward Gray. They can be considered to be on different planes of fault and this difference, if established at the trial, would warrant a complete shifting of the loss from one to the other. If the facts prove to be as here alleged, it would seem equitable and just that implied indemnity be allowed to the City against Ryan and Kelley. We conclude that the City's first amended cross-complaint stated a cause of action in implied indemnity and that the trial court erred in sustaining the demurrers of Ryan and Kelley without leave to amend.

Finally, we turn to the question of whether the City's cross-complaint properly stated an action for declaratory relief. We need not deal with this matter at length since Ryan and Kelley's contentions on the issue are based primarily on the erroneous assumption that the City's first amended cross-complaint failed to state a cause of action for implied indemnity. A declaratory relief action need not be labeled as such. It is perfectly clear that the City is seeking a determination of its rights against Ryan and Kelley in the event that it is found liable to the plaintiff and that an actual controversy exists between the City and the other parties which justifies declaratory relief pursuant to Code of Civil Procedure section 1060. The City's right to cross-complain under these circumstances cannot be questioned (Code Civ.Proc. § 442; J. C. Penney Co. v. Westinghouse Electric Corp., 217 Cal.App.2d 834, 837–839, 32 Cal.Rptr. 172; Horn & Barker, Inc. v. Macco Corp., 228 Cal.App.2d 96, 102, 39 Cal.Rptr. 320).

The judgments sustaining the demurrers of Ryan and Kelley are reversed, and the case is remanded with directions to overrule the demurrers and permit the City to proceed on its first amended cross-complaint for equitable indemnity.

TAYLOR, Associate Justice.

SHOEMAKER, P. J., and AGEE, J., concur. Hearing granted; SULLIVAN, J., not participating.