Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court No. GIC855357 of San Diego County, Linda B. Quinn, Judge.
IRION, J.
The Pahla Corporation (Pahla) appeals from judgments entered against it following the trial court's order sustaining the demurrers without leave to amend of cross-defendants Western Trucking LLC (Western Trucking), Victor Meza (individually and doing business as V. Meza Trucking — collectively "Meza"), Vinci-Pacific Corporation (Vinci-Pacific) and the City of San Diego (the City) to Pahla's second amended cross-complaint for indemnity.
Pahla contends that the trial court erred in concluding it had not sufficiently pled an indemnity cause of action to recover its attorney fees and other expenses, including a settlement payment, that it incurred after being added as a defendant and cross-defendant in a personal injury lawsuit arising out of an accident at a construction site. We conclude that Pahla's challenge to the judgments is without merit, and accordingly we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On July 15, 2005, a tractor-trailer hauling dirt to a construction site struck a pedestrian — Yevdokia (Daisy) Bristman — at the entrance to the Torrey Ranch construction project in San Diego, causing her to suffer an amputation of both legs. Daisy and her husband Mark Bristman filed a personal injury lawsuit against several parties, including the driver of the tractor-trailer (Meza), the owner of the trailer (Western Trucking), the general contractor at the Torrey Ranch project (Garden Communities) and the grading subcontractor (Vinci-Pacific).
We use first names for convenience only and no disrespect is intended. We refer to Daisy and Mark together as the Bristmans.
The defendants filed cross-complaints for indemnity against each other. Garden Communities, followed by Vinci-Pacific, then amended their cross-complaints to name Pahla as a cross-defendant.
Garden Communities' amended cross-complaint also added the City as a cross-defendant. The City was apparently eventually added as a defendant to the Bristmans' complaint.
Pahla responded to being added to the action by filing its own cross-complaint, naming Garden Communities and Vinci-Pacific, as well as Meza and the City, among others, as cross-defendants. In a later amendment, Pahla added Western Trucking as a cross-defendant. After being sued by Pahla, Meza added Pahla as a cross-defendant, but Western Trucking and the City did not.
Following the filing of Pahla's cross-complaint, the Bristmans amended their complaint to add Pahla as a defendant.
According to Pahla's pleadings, it performed grading work at the Torrey Ranch project until September 2003 and created several temporary haul roads, including the haul road that Meza was turning into when Daisy's injury occurred in 2005. Pahla contends that it was brought into the action "on the alleged grounds that [it] was responsible for the design, construction and/or maintenance of the entrance to the Torrey Ranch project... and the ramp descending into the project in existence as of... the date of the subject accident."
Pahla filed a motion for summary judgment against the Bristmans' complaint. While that motion was pending, Pahla entered into a settlement agreement with the Bristmans under which Pahla agreed to pay $100,000 to the Bristmans, who, in return, agreed to file a statement of non-opposition to Pahla's motion for summary judgment. In a September 21, 2007 minute order, the trial court granted Pahla's motion for summary judgment. The trial court noted that the Bristmans had filed a notice of non-opposition, but also stated that "[t]he undisputed evidence establishes that... Pahla did not owe a duty to [the Bristmans] and did not cause or contribute to the subject accident.... [D]efendant Pahla had no involvement or connection with the development and/or construction activity taking place in the area where the subject accident occurred."
Pahla then applied for, and obtained, an October 3, 2007 order determining that its settlement with the Bristmans was in good faith pursuant to Code of Civil Procedure section 877.6. The trial court severed the litigation of Pahla's cross-complaint from the underlying action.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
The remaining defendants then reached settlements with the Bristmans and obtained an order determining that the settlements were entered into in good faith. In its order determining the good faith of the settlements, the trial court dismissed the Bristmans' complaint with prejudice as to Western Trucking, the City, Garden Communities and Vinci-Pacific, among others, and stated that the good faith settlement determination barred "any other joint tortfeasor from asserting any further claims against [those parties] for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." Upon Pahla's objection, the trial court expressly declined the settling parties' request to dismiss Pahla's cross-complaint as part of its order determining that the settlements were entered into in good faith.
After a round of demurrers to Pahla's first amended cross-complaint, Pahla filed a second amended cross-complaint, which alleged a single cause of action for "Total Indemnity" against, among others, Western Trucking, Meza, Vinci-Pacific and the City. The second amended cross-complaint alleged that Pahla was not involved with the Torrey Ranch project after September 2003 and, although it had created the temporary haul road which was later used as the entrance to the project in 2005, the conditions in 2003 were very different than those existing at the time of the 2005 accident. As Pahla alleged, there was no pedestrian or vehicle traffic in the area in 2003, and it had created the haul road solely for the purpose of its own hauling activities. Pahla alleged that Western Trucking, Meza, Vinci-Pacific and the City "owe Pahla total indemnity pursuant to general and equitable indemnity principles" for "all damages sustained by Pahla in defending its interests in the underlying action and in prosecuting this cross-complaint." Purportedly identifying three legal bases for its indemnity claim, the second amended cross-complaint stated that (1) "to the extent that Pahla was an alleged joint tortfeasor" it had "a right to total indemnity"; (2) to the extent that Pahla was "not a joint tortfeasor" (due to prevailing on summary judgment), it had a "right to total indemnity"; and (3) the "third party tort of another doctrine" permitted Pahla to obtain total indemnity.
The second amended cross-complaint also alleged a cause of action for express contractual indemnity against the developer of the Torrey Ranch project, and a cause of action for declaratory relief against the developer and the general contractor, Garden Communities. These causes of action survived demurrer, and neither Garden Communities nor the developer are parties to this appeal.
Western Trucking, Meza, Vinci-Pacific and the City demurred to the second amended cross-complaint, and the trial court sustained the demurrers without leave to amend and entered judgments against Pahla. Pahla appeals from the judgments.
II
DISCUSSION
A. Standard of Review
" 'On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.' " (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) "A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground." (Carman v. Alvord (1982) 31 Cal.3d 318, 324.) In reviewing the complaint, "we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable." (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.)
Further, "[i]f the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment.... If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred.... The plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, citations omitted.) "[S]uch a showing can be made for the first time to the reviewing court...." (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)
B. The Tort of Another Doctrine Does Not Apply Here
We first consider Pahla's contention that, under the "tort of another doctrine, " it has stated a valid cause of action against Western Trucking, Meza, Vinci-Pacific and the City to recover the attorney fees and other costs incurred in litigating the underlying action and in prosecuting its cross-complaints.
The tort of another doctrine, as set forth by our Supreme Court in Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618 (Prentice), holds that "a person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Id. at p. 620.) The doctrine is an exception to the general rule, codified in section 1021, "that each party is to bear his own attorney fees unless a statute or the agreement of the parties provides otherwise." (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504 (Gray).) The tort of another doctrine, which is also referred to as the " 'third party tort' exception" is "embodied in the Restatement of Torts and is generally followed in the United States." (Gray, at p. 505, citing Rest.2d Torts, § 914, subd. (2), and appen.)
The tort of another doctrine is set forth in the Restatement Second of Torts as follows: "One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action." (Rest.2d Torts, § 914, subd. (2).)
Significantly, "the so-called 'third party tort exception' to the rule that parties bear their own attorney fees is not really an 'exception' at all but an application of the usual measure of tort damages.... Indeed, this point was made clear in Prentice itself when the court stated it was 'not dealing with "the measure and mode of compensation of attorneys" but with damages wrongfully caused by the defendant's improper actions.' " (Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310 (Sooy), citation omitted.) Thus, because the tort of another doctrine is "in fact an element of tort damages, nearly all of the cases which have applied the doctrine involve a clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation for those fees." (Ibid., collecting cases.) "[W]hen a defendant's tortious conduct requires the plaintiff to sue a third party, or defend a suit brought by a third party, attorney fees the plaintiff incurs in this third party action 'are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action.' " (Third Eye Blind, Inc. v. Near North Entertainment Ins. Services, LLC (2005) 127 Cal.App.4th 1311, 1325 (Third Eye Blind).)
As explained in Sooy, two cases have applied the tort of another doctrine to situations in which the party required to pay the attorney fees did not owe a traditional tort duty of care to the person seeking compensation for those fees. (Sooy, supra, 220 Cal.App.3d at pp. 1311-1312, citing Lang v. Klinger (1973) 34 Cal.App.3d 987 and Manning v. Sifford (1980) 111 Cal.App.3d 7.) Not surprisingly, Pahla focuses on Lang and Manning here, arguing that the tort of another doctrine applies, even in the absence of a traditional tort duty between it and Western Trucking, Meza, Vinci-Pacific or the City. However, we concur with Sooy that Manning and Lang are not persuasive, and that Prentice, supra, 59 Cal.2d 618, requires that there be a breach of duty between the party required to pay and the person seeking compensation before the tort of another doctrine may be applied. (Sooy, at p. 1312 [rejecting Manning and Lang, and agreeing with the concurring justice in Manning who was concerned by the "suggestion that attorney fees are recoverable under Prentice other than as damages in a tort action"].) Pahla also relies on a more recent case, Behniwal v. Mix (2005) 133 Cal.App.4th 1027. However, Behniwal did not address whether the tort of another doctrine requires the party ordered to pay attorney fees to have breached a tort duty toward the compensated party, as Behniwal found the tort of another doctrine to be inapplicable on another ground. (Id. at p. 1043.)
Accordingly, in determining whether the tort of another doctrine provides a basis for Pahla to recover its attorney fees from Western Trucking, Meza, Vinci-Pacific and the City, we must focus on whether those parties are alleged to have breached a traditional tort duty to Pahla.
If the tort of another doctrine applied, Pahla would be able to recover the attorney fees that it expended in defending against the Bristmans' lawsuit, but the doctrine would not permit Pahla to recover the attorney fees it incurred in pursuing its cross-complaint. Attorney fees recoverable under the tort of another doctrine "are to be distinguished from 'attorney's fees qua attorney's fees, ' such as those the plaintiff incurs in suing the tortfeasor defendant." (Third Eye Blind, supra, 127 Cal.App.4th at p. 1325.)
The specific issue before us is whether Western Trucking, Meza, Vinci-Pacific and the City owed Pahla a duty of care to refrain from engaging in conduct that would cause Pahla to be brought into a personal injury lawsuit by someone injured as a result of construction activity at the Torrey Ranch project. "A judicial conclusion that a duty is present or absent is merely ' "a shorthand statement... rather than an aid to analysis.... '[D]uty, ' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." ' [Citations.] 'Courts, however, have invoked the concept of duty to limit generally "the otherwise potentially infinite liability which would follow from every negligent act...." ' " (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.)
"[W]hether a duty of care exists in a given circumstance, 'is a question of law to be determined on a case-by-case basis.' " (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 (Parsons).) "Some of the considerations that courts have employed in various contexts to determine the existence and scope of duty are: 'the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.' " (Id. at pp. 472-473.) "[A] court's task — in determining 'duty' — is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6 (Ballard).) In the end, "[d]uty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection." (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265, citing Dillon v. Legg (1968) 68 Cal.2d 728, 734.)
Here, several factors weigh against a conclusion that Western Trucking, Meza, Vinci-Pacific and the City owed Pahla a duty to prevent it from being brought into a lawsuit for personal injuries caused by construction trucks entering the Torrey Ranch project.
First, we examine " 'the closeness of the connection between the defendant's conduct and the injury suffered.' " (Parsons, supra, 15 Cal.4th at p. 473.) Here, (1) the relevant "defendant[s]" are Western Trucking, Meza, Vinci-Pacific and the City; (2) the relevant "injury suffered" is the financial impact to Pahla by being brought into the Bristmans' litigation; and (3) the "conduct" at issue is the allegedly negligent conduct of Western Trucking, Meza, Vinci-Pacific and the City at the construction site. (See Parsons, supra, 15 Cal.4th at p. 473.) Specifically, with respect to the conduct at issue, Pahla alleges that the "City failed to use due care in the management of its property"; "Meza and Western Trucking failed to use due care in their dirt hauling operations"; "Vinci failed to use due care in supervising its grading work at the construction site"; and "Vinci and the City also created/and or maintained a dangerous condition on the premises with respect to the construction entrance to Torrey Ranch."
According to Pahla, apart from owing Pahla a duty to refrain from engaging in negligent conduct at the construction site, Vinci-Pacific and Meza also owed Pahla a duty to refrain from improperly filing cross-complaints against it without a factual basis. Pahla contends that the improper filing of cross-complaints by Vinci-Pacific and Meza caused the Bristmans to name Pahla in their complaint, which, in turn, caused Pahla to incur litigation expenses. However, to successfully obtain attorney fees on that basis and overcome the litigation privilege, Pahla would have to succeed on a claim for malicious prosecution against Vinci-Pacific and Meza. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [explaining litigation privilege and malicious prosecution as an exception to the privilege]; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 59 [attorney fees are recoverable as damages for malicious prosecution].) Pahla does not attempt to plead a cause of action for malicious prosecution. We accordingly do not consider any conduct engaged in by Vinci-Pacific or Meza during this litigation in determining whether those parties owed or breached a duty of care to Pahla. Moreover, we note that Meza amended its cross-complaint to add Pahla as a cross-defendant after the Bristmans filed their request to amend their complaint to name Pahla as a defendant, thus precluding Pahla's causation argument as to Meza.
Focusing specifically on the alleged negligence of Western Trucking, Meza, Vinci-Pacific and the City, it is evident that there is only a tenuous connection between any negligence by Western Trucking, Meza, Vinci-Pacific and the City at the construction site and the injury to Pahla in the form of litigation fees and expenses. Daisy was the party directly injured by the alleged negligent conduct of Western Trucking, Meza, Vinci-Pacific and the City. Pahla, on the other hand, incurred injury in the form of litigation expenses only as a result of the Bristmans' decision to name Pahla as a defendant to the lawsuit. Pahla was not an obvious choice as a possibly responsible party, as it had not been involved at the construction site for approximately two years before the accident. Its only connection to the accident was that it had — under very different circumstances — created the haul road that Meza was entering during the accident. Accordingly, we conclude that there is not sufficient " 'closeness of the connection between the defendant's conduct and the injury suffered' " (Parsons, supra, 15 Cal.4th at p. 473) to support the recognition of a duty between Western Trucking, Meza, Vinci-Pacific and the City on the one hand, and Pahla on the other.
Indeed, in this case the connection between the alleged negligence of Western Trucking, Meza, Vinci-Pacific and the City and the injury incurred by Pahla is so tenuous that if we were to recognize a duty to compensate Pahla for its attorney fees in this situation, there would be few multiparty tort lawsuits in which the American rule would continue to apply, under which each party generally is responsible for its own attorney fees. (Cf. Gray, supra, 35 Cal.3d at p. 504 [explaining American rule].) As our Supreme Court has explained, it did not intend, by adopting the tort of another doctrine in Prentice, supra, 59 Cal.2d 618, "to entitle exonerated defendants in commonplace, multiparty tort actions to recover their attorney's fees from unrelated codefendants who were held liable." (Davis v. Air Technical Industries, Inc. (1978) 22 Cal.3d 1, 7, fn. 9; see also Watson v. Department of Transportation (1998) 68 Cal.App.4th 885, 894 (Watson) ["The extension of the Prentice rule to the commonplace case of an exonerated alleged tortfeasor would go a long way toward abrogation of the American rule.... It would substantially expand the notion of duty under the law of torts to compensation of the litigation expenses incurred by all persons, however connected to any tortious event, whom the injured plaintiff elects to sue who succeed in establishing lack of liability."].)
Second, we focus on the factor of foreseeability. Specifically, we inquire whether "the category of negligent conduct" allegedly engaged in by Western Trucking, Meza, Vinci-Pacific and the City was "sufficiently likely to result in the kind of harm experienced" by Pahla in the form of litigation fees and expenses. (Ballard, supra, 41 Cal.3d at p. 573, fn. 6.) As Pahla emphasized in its second amended cross-complaint, it had not been involved with the Torrey Ranch project for almost two years at the time of Daisy's injury, and its previous involvement in the project was limited to grading work in which it hauled dirt into the construction site under conditions very different from those existing at the time of the 2005 accident — including public use of the streets around the construction site. Under those circumstances, it is not reasonably foreseeable that a personal injury arising from the negligence of Western Trucking, Meza, Vinci-Pacific or the City at the entrance to the site in July 2005 would cause Pahla to be sued and incur litigation expenses to defend itself.
A final factor that we find to be relevant here is the policy of preventing future harm. (Parsons, supra, 15 Cal.4th at p. 473.) In this case, imposing a duty of care toward Pahla is not necessary to create an incentive for Western Trucking, Meza, Vinci-Pacific and the City to avoid negligent conduct and future harm. Here, regardless of whether Western Trucking, Meza, Vinci-Pacific and the City owed a duty to Pahla, they would still be liable for any negligence toward the people physically injured at the construction site, such as Daisy. That liability would in and of itself serve to deter future harm. (See Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 209 [reasoning that "to deter the manufacture and sale of defective products, it is not necessary to impose a duty upon product manufacturers and sellers to avoid negligently causing emotional distress to product owners who lend a defective, injury-causing product to a family member" because "the manufacturers and sellers of defective products are already liable for damages resulting from the injuries suffered by the users of those defective products"].)
Because the above factors point away from the existence of duty of care, and Pahla has not cited any authority recognizing a duty of care in any similar circumstance, we conclude that Western Trucking, Meza, Vinci-Pacific and the City did not owe a duty of care to Pahla under the facts presented by this case.
As we have explained, the tort of another doctrine applies only when a party breached a traditional tort duty toward the party seeking compensation for attorney fees. (Sooy, supra, 220 Cal.App.3d at pp. 1310-1312.) Because Western Trucking, Meza, Vinci-Pacific and the City did not owe a duty of care to Pahla, the tort of another doctrine does not apply.
Certain statements in Pahla's opening brief could be interpreted to mean that Pahla intends to rely on section 1021.6 to support its claim for "total indemnity" against Western Trucking, Meza, Vinci-Pacific and the City.
C. The Doctrine of Equitable Indemnity Does Not Provide a Basis for Recovery
Apart from the tort of another doctrine, Pahla vaguely attempts to rely generally on the doctrines of "equitable indemnity" or "implied indemnity" to support its cause of action for "total indemnity" against Western Trucking, Meza, Vinci-Pacific and the City.
Pahla's discussion of this issue is somewhat confusing because, other than discussing the tort of another doctrine, Pahla does not clearly identify the source of its assertion that it is entitled to equitable or implied indemnity. In the trial court, the parties attempted to make sense of Pahla's position by assuming that Pahla was relying on the principle of equitable indemnity set forth in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578 (American Motorcycle), "in which liability for an indivisible injury caused by concurrent tortfeasors will be borne by each individual tortfeasor 'in direct proportion to [his] respective fault.' " (Id. at p. 598.) Pahla's appellate briefing appears to embrace the equitable indemnity doctrine for concurrent tortfeasors set forth in American Motorcycle and its progeny, defending itself from attacks by respondents that the doctrine is inapplicable here. We therefore examine whether the doctrine of equitable indemnity as set forth in American Motorcycle applies here.
Pahla also cites cases arising in contractual indemnity or implied contractual indemnity contexts in which the indemnitee sought to recover its attorney fees as part of its indemnity claim. (See, e.g., Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1029 [implied contractual indemnity]; Isthmian Lines, Inc. v. Schirmer Stevedoring Co. (1967) 255 Cal.App.2d 607, 612 [quasi-contractual claim for indemnity].) However, those cases are inapposite because Pahla has not asserted a claim for contractual or implied contractual indemnity and does not allege any contractual or quasi-contractual relationship with Western Trucking, Meza, Vinci-Pacific or the City. We note further that although "vicarious liability... and strict liability... also may sustain application of equitable indemnity" (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852, citations omitted), neither of those situations exist here.
1. The Doctrine of Equitable Indemnity Does Not Provide a Basis for Pahla to Recover Its Attorney Fees from Respondents
In the context of the equitable indemnity available to concurrent tortfeasors, it is well settled that " 'a fundamental prerequisite to an action for partial or total equitable indemnity is an actual monetary loss through payment of a judgment or settlement.' " (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 110 (Western Steamship Lines).) "Indemnity does not invariably follow fault; it is premised on a joint legal obligation to another for damages..., " and thus " 'there can be no indemnity without liability.' " (Id. at p. 114.) "If the alleged tortfeasor is not liable at all no tenable claim can be made for indemnity under the American Motorcycle partial indemnification doctrine." (Watson, supra, 68 Cal.App.4th at p. 892.) Here, the attorney fees or other costs that Pahla incurred in defending the Bristmans' lawsuit do not give rise to a claim for equitable indemnity because those fees and costs do not constitute " 'actual monetary loss through payment of a judgment or settlement' "(Western Steamship Lines, at p. 110) and do not represent " 'a joint legal obligation to another for damages.' " (Id. at p. 114.) Thus, we conclude that Pahla may not recover its attorney fees and costs under the doctrine of equitable indemnity described in American Motorcycle, supra, 20 Cal.3d 578, 598.
2. The Trial Court's Good Faith Settlement Determination Bars Pahla from Recovering Its Settlement Payment to the Bristmans
Nevertheless, as we have noted, Pahla paid $100,000 to the Bristmans in settlement, which could qualify as " 'actual monetary loss through payment of a judgment or settlement' " for the purposes of obtaining equitable indemnity from concurrent tortfeasors. (Western Steamship Lines, supra, 8 Cal.4th at p. 110; see also Mullin Lumber Co. v. Chandler (1986) 185 Cal.App.3d 1127, 1135 [settling party may obtain equitable indemnity for a reasonable settlement amount]; Union Pacific Corp. v. Wengert (2000) 79 Cal.App.4th 1444, 1448 [" 'one acting in good faith in making payment under a reasonable belief that it is necessary to his protection is entitled to indemnity..., even though it develops that he in fact had no interest to protect' "].) Pahla contends that it should be able, at a minimum, to recover the $100,000 settlement payment from Western Trucking, Meza, Vinci-Pacific and the City under an equitable indemnity theory. However, as we will explain, Pahla's attempt to recover the $100,000 settlement payment is barred by the good faith settlement determination made by the trial court when it approved the settlement entered into by Western Trucking, Meza, Vinci-Pacific and the City, along with the other defendants.
The trial court made a good faith settlement determination under section 877.6, which provides in part: "(a)(1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors... shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors.... [¶]... [¶] (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." (§ 877.6, subds. (a)(1), (c).) "[A] tort defendant who has entered into a good faith settlement within the meaning of section 877.6, subdivision (c) is absolved of any further liability for all equitable indemnity claims, including claims seeking total equitable indemnity." (Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 817.)
Pahla contends that the good faith settlement bar does not apply to it because, due to the summary judgment in its favor, it is not a "joint tortfeasor." Pahla argues that it is accordingly not subject to the trial court's order under section 877.6, subdivision (c) barring "any other joint tortfeasor... from asserting any further claims... for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault." (Italics added.)
We reject Pahla's argument for two reasons. First, as respondents point out, judgment had not been entered in favor of Pahla at the time that the good faith settlement determination was made. Accordingly, Pahla was still a defendant in the Bristmans' lawsuit and thus classified as a potential joint tortfeasor subject to the good faith settlement order. (See Mid-Century Ins. Exchange v. Daimler-Chrysler Corp. (2001) 93 Cal.App.4th 310, 316 [a party need only be a potential joint tortfeasor to be subject to the bar arising from a good faith settlement determination]; John Hancock Mutual Life Ins. Co. v. Setser (1996) 42 Cal.App.4th 1524, 1534-1535 [party was not a joint tortfeasor when the good faith determination was made because a final judgment had been entered in the party's favor].)
Second, insofar as we are examining an equitable indemnity claim arising out of a settlement payment made by Pahla to the Bristmans, Pahla must logically be classified as a joint tortfeasor because it paid a sum of money to resolve the Bristman's tort claims against it, and it obtained an order determining the good faith of its own settlement, which barred "any other joint tortfeasor" from making contribution or indemnity claims. (Italics added.) The summary judgment in favor of Pahla does not negate the fact that Pahla paid money to settle tort claims asserted against it as an alleged tortfeasor, which it is now trying to recover from other alleged joint tortfeasors. Pahla's claim for equitable indemnity based on the $100,000 settlement payment is therefore subject to the bar created by the trial court's good faith settlement determination.
As Pahla has not identified any other valid basis for its equitable indemnity claim, and has not identified any viable pleading amendments, we conclude that the trial court properly sustained Western Trucking's, Meza's, Vinci-Pacific's and the City's demurrers to the second amended cross-complaint and properly denied leave to amend.
DISPOSITION
The judgments are affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.
Section 1021.6 states: "Upon motion, a court after reviewing the evidence in the principal case may award attorney's fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee's interest by bringing an action against or defending an action by a third person and (b) if that indemnitor was properly notified of the demand to bring the action or provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict."
Section 1021.6 "does not establish the criteria for an implied indemnity" and instead "presupposes the existence of 'a claim for implied indemnity' on which the party seeking attorney's fees has prevailed." (Watson, supra, 68 Cal.App.4th at p. 890.) Pahla clarifies in its reply brief that it is not currently relying on section 1021.6, but states that if we conclude the second amended cross-complaint states a claim for indemnity, we should remand so that Pahla can bring a motion for attorney fees under section 1021.6. Accordingly, we do not consider whether Pahla could meet the requirements for an award of attorney fees under section 1021.6, and we focus instead on the threshold issue of whether Pahla has stated a claim for indemnity.
We also reject any suggestion by respondents that section 1021.6 has completely supplanted the tort of another doctrine. After the enactment of section 1021.6 in 1979, our Supreme Court has continued to discuss the doctrine of tort of another as a viable legal principle. (Gray, supra, 35 Cal.3d at p. 505.)