Reset A A Font size: Print

Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, acting By and Through the DEPARTMENT OF TRANSPORTATION, Petitioner, v. SUPERIOR COURT of the State of California for the COUNTY OF LOS ANGELES, Respondent; Art FROST, d/b/a Art Frost Leasing Co., Martin Josephson, Ray Hunter and Elaine Hunter, Real Parties in Interest.

Civ. 54131.

Decided: January 23, 1979

Richard G. Rypinski, Chief Counsel, San Diego, Joseph A. Montoya, Robert L. Meyer, Robert W. Vidor, Joel L. Zwick and Ellen D. Tiger, Los Angeles, for petitioner. Yusim, Cassidy, Stein & Hanger, Andrew D. Stein, Jeffrey G. Keane, Beverly Hills, for real parties in interest Frost and Josephson. Shelden & Kulchin, Inc., Encino, for real parties in interest Hunter.

On September 29, 1978, this court denied the People's petition for a writ of prohibition and/or mandate filed July 21, 1978, for failure to state facts sufficient to justify the relief sought. On October 25, 1978, a petition for hearing in the Supreme Court was granted and the matter returned to this court with directions to issue an alternate writ of mandamus. On November 16, 1978, such a writ was issued requiring the superior court to vacate its order of June 2, 1978, overruling the People's demurrer to cross-complaint of Art Frost, dba Art Frost Leasing Co. and Martin Josephson and to vacate its order of June 20, 1978, granting leave to Ray and Elaine Hunter to file a cross-complaint and to enter new and different orders sustaining the demurrer and denying the motion for leave to file the cross-complaint by the Hunters, or in the alternative to show cause why a peremptory writ of mandate should not issue.[FN1] Respondent court, having failed to comply with our order to vacate and enter new orders, the matter came before us January 17, 1979, and was submitted for decision on the order to show cause.


These proceedings arise from an automobile accident occurring December 16, 1973, when a vehicle being operated by Jack Peters became involved with a second owned by Ray and Elaine Hunter (Hunter) and a third owned by Art Frost and being operated by Martin Josephson (Frost) on a public highway owned and maintained by the State of California (State).[FN2] On October 23, 1974, Peters filed an action for damages for negligence against Hunter and Frost, which was amended March 29, 1976, to include a cause of action for legal malpractice against his former attorney, William Sarnoff, for failure to file a timely claim with the state under Government Code section 911.2.

Frost proceeded to cross-complain against State, Hunter and Sarnoff, requesting indemnity on a comparative negligence basis.[FN3] State's general demurrer to this cross-complaint was overruled with 30 days to answer. Hunters' motion for leave to also file a cross-complaint against the state for implied indemnity was granted with 30 days to answer.[FN4] State then filed the instant petition for writ of prohibition and/or mandate contending the orders complained of were unreasonable, arbitrary and in excess of the court's jurisdiction. State would have this court order the court below to sustain its demurrer to the Frost cross-complaint and deny the Hunters' motion for leave to file a similar document.


It is contended that plaintiff Peters' failure to file a claim with the state not only barred his cause of action for damages for personal injuries against that entity but also barred codefendants Frosts' and Hunters' claims for indemnification. In addition it is contended that Frosts' and Hunters' heretofore failure to file claims on their own behalf under the same act barred them from any right to indemnity. We do not agree but for reasons to follow will nevertheless grant the petition.


In the recent case of American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (A.M.A.) our Supreme Court held that “under the governing statutory provisions a defendant is generally authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis, even when such concurrent tortfeasor has not been named a defendant in the original complaint.” (Page 607, 146 Cal.Rptr. page 200, 578 P.2d page 917.) In the instant case the allegations of the Frost and Hunter cross-complaints are sufficient to suggest that cross-defendant State's negligence may possibly have been a concurrent cause of Peters' injuries. While we, of course, intimate absolutely no opinion as to the merits of that claim of negligence, if it is established that such existed and was a proximate cause of injury, State could ordinarily be held liable for its share of the resulting damages. Thus, we believe the Frost cross-complaint states a cause of action for comparative indemnity against the individual defendants Hunter and Sarnoff and that, except for the question presented by the failure to file claims, the same is true as to the state.

We turn to consideration of the failure to file claims. In so doing we envisage both procedural and substantive problems of no mean proportions. Unfortunately neither A.M.A. nor other available case law is dispositive of this issue and for that reason we are forced to embark upon a rough sea without benefit of a chartered course.

It is first argued that plaintiff Peters' previously established failure to file a claim for damages as required by the California Tort Claims Act, Government Code sections 900 et seq., bars both Frost and Hunter from the right to seek indemnity from State.[FN5] We find this argument to lack logic and be unsupported by statutory or case law. A concurrent tortfeasor's right to the indemnity contemplated by A.M.A. exists independently of indemnitor's liability to the injured plaintiff. For that reason the latter's failure to perfect his action against the former does not deprive the court of jurisdiction over the cause for indemnity.

The second argument on behalf of the State is not without merit. Generally speaking claims for Money or damages must be presented in accordance with Government Code sections 900 et seq., as a prerequisite to maintaining an action against the State. (Govt.Code s 905.2 subd. (c); Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 120, 113 Cal.Rptr. 102, 520 P.2d 726.) A claim for indemnity from a concurrent tortfeasor on a comparative fault basis would appear to be such a claim which would ordinarily accrue upon rendition of a final judgment in favor of Peters and against Frost and Hunter and would permit one to prepare the claim in accordance with the statutory requirements for such prescribed by Government Code section 910.[FN6] In so concluding we are not unmindful of real parties' suggestion that the cross-complaints are in the nature of actions for declaratory relief and as such do not require the filing of a claim. On the contrary, both cross-complaints pray the State be ordered to pay money damages. Since section 910 requires, inter alia, that the basis for the amount claimed be shown in the claim form, the rendition of a judgment would appear to be a condition precedent to compliance with the requirements of the claim statute. Under the circumstances we hold the proper procedure to be followed by Frost and Hunter is to await rendition of a final judgment in Peters' action against them and Sarnoff. If, as a result thereof, State indemnity be in order, the required claim therefor could be filed and the matter pursued in an independent action. (See Govt.Code, s 901.) We find nothing in A.M.A. requiring that the right to indemnity from a public entity must be resolved by way of cross-complaint in the basic action. On the contrary some of the problems in so doing appear to have been anticipated by our high court wherein it said at page 607 of 20 Cal.3d at page 200 of 146 Cal.Rptr. at page 917 of 578 P.2d:

“Accordingly, we conclude that under the governing statutory provisions a defendant is generally authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis, even when such concurrent tortfeasor has not been named a defendant in the original complaint. 9

9 There are, of course, a number of significant exceptions to this general rule. For example, when an employee is injured in the scope of his employment, Labor Code section 3864 would normally preclude a third party tortfeasor from obtaining indemnification from the employer, even if the employer's negligence was a concurrent cause of the injury. (See E. B. Wills Co. v. Superior Court (1976) 56 Cal.App.3d 650, 653-655, 128 Cal.Rptr. 541; cf. Mize v. Atchison, T. & S.F. Ry. Co. (1975) 46 Cal.App.3d 436, 458-460, 120 Cal.Rptr. 787.)

Similarly, as we have noted above such a partial indemnificndemnification claim cannot properly be brought against a concurrent tortfeasor who has entered a good faith settlement with the plaintiff, because permitting such a cross-complaint would obviously undermine the explicit statutory policy to encourage settlements reflected by the provisions of section 877 of the Code of Civil Procedure. (See pp. 603-604 of 20 Cal.3d, p. 198 of 146 Cal.Rptr., p. 915 of 578 P.2d, Ante.)

Because A.M.A. does not Require in all cases that indemnity be sought by way of cross-complaints and because of the statutory requirements for filing of claims against a public entity, it appears that the trial court erred in this case by overruling the demurrer to the Frost cross-complaint and in granting leave to Hunter to file such a pleading. In so holding we are not unmindful of the possible savings in time and expense to be had under the cross-complaint procedure of A.M.A. and the constitutional equal protection arguments advanced by Frost and Hunter but find same unpersuasive to a contrary conclusion. Under the theory of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, each party in the Peters' action will, theoretically at least, be assessed with his or her proportionate share of the total damage. Presumably indemnity for such share would not lie and the issue may become moot. In the event a party should become required to pay another's share under the theory of joint and several liability imposed by A.M.A., and only then, would the independent cause of action for implied indemnity arise. The arguments advanced by Frost and Hunter are inapposite in this case. We have examined the out-of-state cases cited in oral argument and find same factually distinguishable and otherwise not controlling of a contrary decision herein.

The alternate writ of mandamus issued by this court November 16, 1978, is vacated and a peremptory writ of mandate is granted. The court below is directed to vacate its orders overruling the Frost demurrer and granting Hunter leave to file a cross-complaint and to make and enter orders sustaining the demurrer and denying the motion for leave to file.


1.  The parties were notified of this court's intention to take judicial notice of the superior court file entitled Jack Peters, etc. v. Ray Robert Hunter, et al., case number NWC 40908.

2.  No claim was filed on behalf of Peters against the state within the 100 days prescribed in Government Code section 911.2. Applications for leave to file a late claim were denied by the State Board of Control, the superior court and the court of appeal.

3.  It was alleged that state had failed to properly block and warn of the blocking of two of the eastbound highway lanes proximately causing Peter's injuries.

4.  This cross-complaint names only the state although we note it includes a cause of action for implied indemnity based upon negligence as to cross-defendants Does XI-XX.

5.  In an unpublished opinion in 2d Civil No. 45665 filed November 19, 1975, this court affirmed the lower court's denial of Peters' motion to be relieved from default in filing his claim.

6.  The statute does not provide for filing contingent claims.

ALLPORT, Associate Justice.

COBEY, Acting P. J., and POTTER, J., concur.