WINCHESTER v. BARKHEIMER (1984)

The appeal before us is taken from a judgment on the pleadings, denying the above-named defendants and cross-complainants, William and Diane Barkheimer (hereafter for convenience in the singular, Barkheimer), any relief on their cross-complaint.   By that pleading they sought a judicial declaration that they were entitled to indemnification from defendants and cross-defendants Value Realty and Gary G. Shute (respectively a real estate broker and salesperson, hereafter for convenience, Broker) for such sums as Barkheimer might be obliged vicariously to pay on account of the Broker's claimed fraud.

The pleadings before the superior court disclosed the following factual context.

The plaintiffs Winchester had purchased a dwelling house from Barkheimer.   The Broker, representing Barkheimer in the transaction, had fraudulently stated to the Winchesters that the dwelling house consisted of 1,350 square feet, when in fact it contained but 1,125 square feet.   Following the sale's consummation plaintiffs Winchester, by the instant action, sought damages from the Broker, and from Barkheimer as its principal, based upon such fraud.

In the action Barkheimer, by cross-complaint against the Broker, sought a judicial declaration that the Broker was primarily responsible for such damages, if any, as might be awarded plaintiffs, and that the Broker was under a duty to indemnify Barkheimer for any sums he might be obliged to pay, such as attorney's fees and costs, as a result of the Broker's fraud and plaintiffs' action.

Thereafter the Broker (not Barkheimer) settled the principal action by payment to plaintiffs Winchester of $4,212.81.

Following the settlement the Broker moved under Code of Civil Procedure section 877.6 for a hearing on the issue of the settlement's good faith.   Following such a hearing it was judicially determined that the Broker's settlement was made in “good faith.”

It was upon that determination that the Broker moved for, and the superior court granted, judgment on the pleadings, i.e., Barkheimer's cross-complaint.   The appeal, as noted, is taken by Barkheimer from that judgment.

We observe that Barkheimer had, at the time of the Code of Civil Procedure section 877.6 hearing, no longer made claim against the Broker for contribution or indemnity for any liability he might bear to the plaintiffs Winchester, for they had abandoned the action.   He simply sought indemnity from the Broker for “losses sustained in defending the action.”

And we note that the Broker's entire reliance in the superior court, and now in this court, has been on Code of Civil Procedure sections 875–880, inclusive.

We have concluded that such reliance is inappropriate, and that the judgment should therefore be reversed.

Code of Civil Procedure sections 875–880 are part of a legislative act adopted 1957, and entitled, “Releases From and Contribution Among Joint Tortfeasors (the act).”  (“Where there is any doubt of the legislative intent the courts may consider the title of the act in question.”  (Orange County Water Dist. v. Farnsworth, 138 Cal.App.2d 518, 525, 292 P.2d 927;  and see Ritter v. Technicolor Corp., 27 Cal.App.3d 152, 154, 103 Cal.Rptr. 686.))

 The “right of contribution” is a technical term;  it arises in favor of one of several persons jointly liable on a “money judgment” who has been obliged to pay more than his proportionate share.  (See Code Civ.Proc., § 875, subd. (a), and 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 48, p. 2347.)

The act specifically refers to the sometimes duty of, and sometimes release from, “contribution” by joint judgment debtors, “[w]here a money judgment has been rendered jointly against” them.  (See Code Civ.Proc., § 875, subd. (a).)  And even more emphatically, it states:  “This title shall not impair any right of indemnity under existing law [emphasis added], and where one tortfeasor judgment debtor is entitled to indemnity from another there shall be no right of contribution between them.”  (Code Civ.Proc., § 875, subd. (f).)  We note also that Code of Civil Procedure section 876 expressly allows indemnity to a principal or employer, from his agent or employee, where he is held vicariously liable on a judgment for the latter's active tort.   That statute states:  “․ Where one or more persons are held liable solely for the tort of one of them or of another, as in the case of the liability of a master for the tort of his servant, they shall contribute a single pro rata share, as to which there may be indemnity between them.”  (Emphasis added.)

 Further, the act (Code Civ.Proc., § 877.6) treats a good faith settlement of a claim against two or more joint tortfeasors, by one of them, as equivalent to payment upon a judgment against all of them.   It does not purport to concern judgments or obligations which are not due the tort claimant, but which instead arise by contract, or operation of law, between the tortfeasors themselves.

Of further aid to our inquiry is the case of Ritter v. Technicolor Corp., supra, 27 Cal.App.3d 152, 154–155, 103 Cal.Rptr. 686, stating:  “[W]hen a principal is liable for acts of his agent performed without express instruction or ratification by the principal, he and the agent are not truly joint tortfeasors.   Rather, the agent's liability is primary, and that of the principal, who committed no moral wrong, is but secondary․  [I]t is true that some of the decisions contain unquestioning reference to the rule governing ‘joint tortfeasors' ․  But this dissection of the common law rule, although possibly of academic interest, is of no aid in construction of section 877․  We note ․ the anomaly that the ‘release’ of the agents may well be illusory as to them.   The release of one tortfeasor ‘shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors' (§ 877, subd. (b)).  But the act ‘shall not impair any right of indemnity under existing law, and where one tortfeasor judgment debtor is entitled to indemnity from another there shall be no right of contribution between them’ (§ 875, subd. (f)), and as to the master-servant situation, the right of indemnity is specifically reserved (§ 876, subd. (b)).''

 We are unpersuaded that the high court's case of American Motorcycle Assn. v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, supports the Broker's position, as contended.   Unlike Ritter v. Technicolor Corp., supra, 27 Cal.App.3d 152, 103 Cal.Rptr. 686, that case dealt with “truly joint tortfeasors,” and not (as here) where one tortfeasor was passive and blameless but for the vicarious liability imposed by the doctrine of respondeat superior.   One alleged actively negligent tortfeasor claimed a right of contribution, or indemnity, against another claimed actively negligent joint tortfeasor.   Such a claim was permitted to be litigated by American Motorcycle Assn. v. Superior Court.   Nothing is seen in the case which in any way impugns the statutory and judicial holdings that despite Code of Civil Procedure sections 875–880, a passive tortfeasor (as here) may, in an otherwise proper case, pursue his right of indemnity against an active joint tortfeasor.

We have resolved only the issue placed before us on this appeal, i.e., the applicability of Code of Civil Procedure sections 875–880 to the case as established by its pleadings.

The judgment on the pleadings is reversed.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.